State of Tennessee v. Marlon McKay ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 7, 2011
STATE OF TENNESSEE v. MARLON McKAY
Direct Appeal from the Criminal Court for Shelby County
No. 08-07886 James M. Lammey, Jr., Judge
No. W2010-01785-CCA-MR3-CD - Filed November 4, 2011
The defendant, Marlon McKay, was convicted by a Shelby County Criminal Court jury of
first degree felony murder and attempted aggravated robbery and was sentenced by the trial
court to consecutive terms of life plus six years in the Department of Correction. On appeal,
he challenges the sufficiency of the convicting evidence and contends that the trial court
committed plain error by granting the State’s request to omit a portion of the pattern jury
instruction on criminal responsibility. Following our review, we affirm the judgments of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J EFFREY S. B IVINS, JJ., joined.
Tiffani S. Taylor, Memphis, Tennessee, for the appellant, Marlon McKay.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
General; William L. Gibbons, District Attorney General; and Stacy M. McEndree and Kevin
R. Rardin, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTS
This case arises out of the August 19, 2008 shooting death of Maurice Taylor, which
occurred outside his Memphis home during the course of an attempted robbery. On
December 11, 2008, the Shelby County Grand Jury returned a two-count indictment charging
the defendant and Courtney Bishop with the felony murder and attempted aggravated robbery
of the victim. The court subsequently granted the defendant’s motion to sever his case from
Bishop’s, and the defendant proceeded to trial alone before a Shelby County jury on May 17,
2010.
State’s Proof
The victim’s mother, Robin Taylor, testified that at the time of his death the victim
was twenty-four years old and had been sharing a home on Cella Street with his older
brother, Mareo Taylor.
Calvin McKissack, a resident of Cella Street, testified that he was outside his home
on the evening of August 19, 2008, watching a friend repair a lawnmower when he became
aware of a Mercury Cougar automobile that kept stopping under the streetlight in front of the
house across the street, pulling off again, and then returning four or five minutes later to stop
in the same spot. The windows were tinted but cracked open, and he was able to see two
African-American men inside who kept looking back over their shoulders each time they
pulled in front of the house. After having seen the men circle the block in the same fashion
four or five different times, McKissack and his friend decided to go inside. Approximately
five minutes later, McKissack heard gunshots, went back outside, and learned that the victim,
who lived several doors down, had been shot in his yard.
Brooke Howard, who also resided on Cella Street at the time of the shooting, testified
that she was returning home from work at about10:30 p.m. on August 19, 2008, when her
suspicions were aroused by the sight of an unfamiliar white car that traveled slowly down the
street two or three different times. About twenty or thirty minutes later, she was in her
bedroom when she heard gunshots.
The victim’s brother, Mareo Taylor, testified that he and the victim were sharing a
home on Cella at the time of the shooting and that the victim, who had only a part-time job,
sold marijuana to supplement his income. Several hours before the shooting occurred, he
asked the victim to give him $10, but the victim told him he had to buy some marijuana first.
At about 8:30 or 9:00 p.m. that night, the defendant stopped by the home to see the victim,
stayed a few minutes, and then left. As the defendant walked through the kitchen, Taylor
saw that he was carrying a large plastic bag, but he was unable to see its contents.
Approximately two hours later, Taylor was watching television with his girlfriend
when the victim received a telephone call and then walked out the kitchen door to the
driveway. Almost immediately after the victim shut and locked the door behind him, Taylor
heard the victim say his name followed by the sound of a gunshot. He looked out the
window, saw the victim staggering beside the kitchen door, and tried to reach him by exiting
the kitchen door. He did not have his door key on him, however, so he then ran out the living
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room door and around the house to the kitchen door. By the time he reached the victim
approximately thirty to forty-five seconds later, the victim was lying on the ground gasping
for air. Taylor testified that the victim was not armed and that there were no weapons in the
home.
Marvin Riley, who was living with a friend on Cella at the time of the shooting,
testified that he heard a single gunshot at about 11:00 p.m. on August 19, 2008, looked out
the front door of his friend’s home, and saw what appeared to be the victim lying on the
ground and two African-American men running side by side down the sidewalk to a light-
colored car parked on the street. He said that the men got into the vehicle and drove off,
turning right onto Hamilton Street toward Lamar Avenue.
Antonio Archie testified that sometime between 10:00 and 11:00 p.m. on August 19,
2008, he had just started his turn off Hamilton Street en route to his home on Cella when a
light-colored, two-door car with two African-American men inside pulled off rapidly from
where it had been stopped on Cella, accelerated down the street, and turned onto Hamilton
headed toward Lamar. When Archie arrived home, he heard a commotion and saw the
victim’s brother’s girlfriend calling 9-1-1 while the victim’s brother held the victim in his
arms.
The defendant’s former live-in girlfriend, Tracy Taylor, testified that the defendant
borrowed her 1997 silver Mercury Cougar at about 8:45 p.m. on August 19, 2008. The
defendant also used her cell phone that night. The witness identified a photograph of a
revolver that she said she had seen around her home during the time that the defendant lived
with her. On cross-examination, she testified that during the time the defendant lived with
her, he smoked marijuana and occasionally took Xanax bars mixed with a prescription cough
syrup containing Promethazine, otherwise known by its street name of “syrup.” She said that
the defendant smoked marijuana with her on August 19, 2008, before he borrowed her car.
She conceded it was possible that the defendant also used Xanax and Promethazine that day.
Officer Lesley Jones of the Memphis Police Department, who responded to the
reported shooting at approximately 11:20 p.m., testified that he and several fellow police
officers attempted CPR on the victim for approximately seven to nine minutes until fire
department officers arrived and pronounced him dead.
Walter Spencer, another resident of Cella Street, testified that on the night of August
19, 2008, he heard a gunshot followed by the sound of car doors shutting and a vehicle
“speeding off.” When he looked out the window, he saw a light-colored car turning right at
the stop sign onto Hamilton.
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Susan Acerra, an investigator with the Shelby County Medical Examiner’s Office,
testified that when she responded to the scene of the shooting, she found the victim lying on
his back on the ground with a gunshot wound in his chest. Her inventory of his person
uncovered $1,163.75 in cash, a cell phone, a tube of chapstick, and a butane lighter.
Cell phone records of the defendant’s ex-girlfriend, Tracy Taylor, were introduced as
an exhibit by stipulation of the parties.
Officer David Payment of the Memphis Police Department’s Crime Scene
Investigation Unit identified various photographs he took of the crime scene, including ones
that showed an empty clear plastic bag that was found beside the victim’s foot and another
clear plastic bag containing .41 grams of marijuana, which was found on the ground beside
the victim’s shoulder. He said he found no weapons or bullet casings at the scene.
Detective Samuel McMinn of the Memphis Police Department’s Investigative Support
Unit testified that, as part of his investigation, he transported Tracy Taylor and the defendant
to the Homicide Office on August 20, 2008.
Sergeant James Max of the Memphis Police Department’s Homicide Unit testified that
he interviewed the defendant in two separate sessions on August 22, 2008. He said that the
defendant denied any involvement in the homicide, telling him that he had bought marijuana
from the victim on August 19, 2008, but by 9:15 p.m. was back home and in for the night.
The defendant also denied owning a gun. Later, Sergeant Max received Tracy Taylor’s cell
phone records, which revealed that a call had been placed from her phone to the victim at
11:05 p.m. on August 19, 2008, which had hit off a cell phone tower located only a couple
of blocks from the crime scene.
On cross-examination, Sergeant Max acknowledged that there were several calls back
and forth that night between the victim’s phone and Tracy Taylor’s phone, including two
short duration calls from Tracy Taylor’s phone to the victim’s phone that were placed after
the shooting. On redirect examination, he said that the call history of Ms. Taylor’s phone did
not reflect those calls and that the defendant later told him that he had deleted the victim’s
number from the phone.
Detective Michael Garner of the Memphis Police Department’s Investigative Support
Unit testified that on August 27, 2008, he and his partner were instructed to escort the
defendant to a lot near Hamilton Street where, according to the defendant, Courtney Bishop
had thrown the gun used in the homicide out of their car window. The officers were unable
to locate the weapon in that lot, however, and as they continued to drive about the area, the
defendant asked him to pull over, telling him that he knew where the gun was and wanted
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to talk to Detective Ragland about it.
Lieutenant Barry Hanks of the Memphis Police Department testified that he used
Tracy Taylor’s cell phone records during a third interview with the defendant on August 22,
2008, to show him that he had to have been in the vicinity of the victim’s home, rather than
at his own home, when he telephoned the victim shortly before the shooting. He said that the
defendant responded by looking down and saying, “[Y]ou got me, don’t you[?]” The
defendant then gave a statement detailing his participation in the crime. In the statement, the
defendant said that he drove Courtney Bishop to the victim’s home, using Tracy Taylor’s
vehicle, with the intention to rob the victim. The defendant also admitted that he supplied
the gun used in the robbery. He claimed, however, that he began to have second thoughts
about the robbery once they reached the victim’s home and was not present when Bishop shot
the victim. The defendant’s statement reads in pertinent part:
I was riding down Brower and I seen Courtney [Bishop]. He was
standing outside and I had stopped to pick him up. We was tripping about
some money and he got in the car. That’s when [the victim] called about 30
minutes after [Bishop] got in the car. That’s when we decided to try and take
[the victim’s] money. I rode around for a minute thinking this is wrong. This
ain’t it. But it was more like I guess we need to do because we both needed
some money. As I drove around, I parked the car for a minute. We jumped
out and walked up Cella Street for a minute. I was really contemplating on
should we do it, should I not ‘cause I know him and I’ve never did anything
like that before, never. Really, I got cold feet and I left the phone in the car to
go back to the car to buy some time to think. Walking back to the car, that’s
when I decided it wasn’t worth it. That’s when I guess [the victim] come out
of the house and I heard a shot. [Bishop] came running towards me and I said
what the fuck did you do – what the fuck you do? And he said he shot him in
the leg. I said you didn’t kill him, did you? And he said naw, man, ‘cause he
reached for his leg. While we were in the car, we driving off by this time. The
next day I seen the news and they said [the victim] was dead.
The defendant said that he drove both to and from the victim’s house and that he knew
the victim had money because the victim had been trying to buy some marijuana.
Dr. Lisa Funte, a medical examiner with the Shelby County Regional Forensic Center
who reviewed the autopsy report of the victim’s body, testified that the cause of death was
a single gunshot wound to the chest.
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Lieutenant Bart Ragland of the Memphis Police Department testified that on August
27, 2008, he checked the defendant and Bishop out of jail in order for them to direct him and
other officers to the location of the murder weapon. He said that when the officers were
unable to locate the weapon at the place indicated, Bishop was driven back to jail. In the
meantime, the defendant, who had asked to speak to him, divulged that he had given the
weapon to a third individual. Lieutenant Ragland then contacted that person, who dropped
off the weapon in the bushes outside a restaurant down the street from a police station.
Lieutenant Ragland identified a photograph of the weapon, which had previously been
identified by Tracy Taylor as one with which she was familiar, as the .357 revolver that he
had recovered from the bushes outside the restaurant. He said that both the weapon and the
bullet that had been recovered from the victim’s body were transported to the Tennessee
Bureau of Investigation (“TBI”) laboratory for testing.
TBI Special Agent Cervinia Braswell, an expert in firearms identification who
conducted the testing of the bullet and gun, testified that the bullet recovered from the
victim’s body was fired through the barrel of the gun.
Sergeant Joe Stark of the Memphis Police Department’s Homicide Unit, who
participated in the defendant’s August 22, 2008 statement, testified that the defendant never
indicated during that interview that he was under the influence of marijuana, codeine/cough
syrup, or any other mind- or mood-altering substance at the time of the shooting. He
acknowledged on cross-examination, however, that he never asked the defendant whether
he had been under the influence of any drugs on August 19.
Defendant’s Proof
Lieutenant Ragland, recalled as a witness for the defense, testified that Tracy Taylor’s
cell phone records indicated that the victim had made an outgoing call to Tracy Taylor’s
phone at 11:05 p.m. on August 19, 2008, which was not reflected in the caller identification
section of the victim’s cell phone.
The defendant testified that on the day of the shooting he smoked marijuana and
consumed some Promethazine with codeine, which he mixed in juice with two Xanax bars.
Sometime in the afternoon, he went to the victim’s house, where he purchased a quarter-
ounce of marijuana that he took home and smoked with his girlfriend, Tracy Taylor, before
she had to leave for a 4:00 p.m. appointment. In addition to the marijuana, he consumed
more Promethazine and Xanax that afternoon. His girlfriend returned home at about 8:00
p.m. and he smoked another marijuana cigarette with her before he, in turn, left home again,
taking her car and cell phone because his own phone had been disconnected for nonpayment.
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The defendant testified that as he was driving around the Orange Mound
neighborhood, Courtney Bishop flagged him down and the two shared a marijuana cigarette
while riding around together. He then dropped Bishop off on the street and met one of his
marijuana suppliers, who provided him with a pound of marijuana on consignment, which
he took to the victim at the victim’s home. The victim was unhappy with the quality,
however, so he left with the marijuana. As he was driving around trying to find a different
buyer, he spotted and picked up Bishop again. Neither he nor Bishop had any money, but
both needed some, and at some point as they were sitting in the car together smoking yet
more marijuana, Bishop suggested they could take money from the victim. The defendant
said that he rejected the idea because it was not the right thing to do. As Bishop continued
to talk about it, the defendant pointed out that Bishop did not even have a gun. In response,
Bishop picked up the defendant’s loaded gun, which the defendant kept by his console for
protection, and told the defendant that he was going to use it to commit the robbery. The
defendant said that he told Bishop “no” and that he could not do that to the victim, whom he
had known since the victim was a child.
The defendant testified that he later called the victim to see if he could sell him
another quarter-ounce of marijuana on credit. He said he parked down the street from the
victim’s house and was trying to reach him on the cell phone when Bishop suddenly jumped
out of the vehicle and began walking toward the victim’s home. He followed after him,
calling him back to the car and asking what he was doing. He then heard a gunshot and saw
Bishop running back toward the car. He panicked, ran back to the car with Bishop, and
drove both of them from the scene. He asked Bishop what he had done, and Bishop told him
that he had shot the victim in the leg.
The defendant testified that he dropped Bishop off and went home, where he twice
called the victim to check on his welfare. No one answered, and the next morning he heard
on the television news that there had been a shooting death on Cella. The defendant testified
that he did not call the police or seek help for the victim because he was frightened. The
defendant described his feelings of anguish and remorse at the death of the victim and said
that he never intended for him to be robbed, much less shot. He also said that he was so
upset about the shooting that he vomited in the car upon reaching his home that night, and
again after he went inside the home.
On cross-examination, the defendant acknowledged he told police, in his statement,
that he had planned to rob the victim but then got “cold feet.” He further acknowledged that
he never said anything about having been under the influence of drugs at the time of the
shooting.
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State’s Rebuttal Proof
Mareo Taylor testified that he saw the defendant at his home at about 8:00 p.m. on the
night of the shooting but did not see him earlier in the afternoon, despite having been home
for almost the entire day.
Tracy Taylor testified that she noticed no unusual smells or signs of recent cleaning
in her vehicle when she drove it to work on the morning of August 20, 2008.
Sergeant Joe Stark and Lieutenant Bart Ragland each testified that the defendant never
told them that Bishop had taken his gun out of his console, as opposed to his having given
it to him, or that he had tried to stop Bishop from committing the robbery.
ANALYSIS
I. Criminal Responsibility Jury Instruction
The defendant first contends that it was plain error for the trial court to grant the
State’s motion to omit a portion of the pattern jury instruction on criminal responsibility. The
State responds by arguing that the defendant cannot show that the omitted portion of the
charge resulted in plain error. We agree with the State.
In order for us to find plain error:
(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is “necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). The presence of all five factors must be established
by the record before we will recognize the existence of plain error, and complete
consideration of all the factors is not necessary when it is clear from the record that at least
one factor cannot be established. Id. at 283.
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The trial court granted the State’s request to omit the following paragraph of the
pattern jury instruction on criminal responsibility: “In deciding criminal responsibility of
the defendant, the jury may also take into consideration any evidence offered that the
defendant attempted to thwart or withdraw from any of the offenses that followed from the
original offense.” T.P.I. Crim. 3.01. In granting the State’s request, the court concluded that
the above portion of the criminal responsibility instruction was irrelevant to the case because
there was no evidence of any other offense that followed from the original, concurrent
offenses of attempted aggravated robbery and felony murder. The trial court compared the
case at bar to a hypothetical case involving a pair of bank robbers charged with robbery,
evading arrest, aggravated assault, and fleeing the scene of an accident. The court reasoned
as follows:
This jury charge of criminal responsibility talks about everyone
involved if they have agreed to be involved in a criminal action, everyone is
responsible for the actions of each other. Now this particular paragraph talks
about things that occurred after the original offense. . . .
Now if coming out of the bank . . . one of these two robbers . . . decides
I don’t want anymore of this, I’m not getting in the car with you, should he be
held responsible for the actions of the driver that drove away, rammed the
police car, shot at the police officers? Now he had clearly abandoned. He
withdrew from the offenses that followed from the original offense. That
seems like it makes sense to me. There’s only one offense here [in the case at
bar]. There’s only one really. I mean, we have an attempted aggravated
robbery coinciding or concurring with the homicide. . . . So there wasn’t . . .
any other offenses that followed from that original offense.
Based on the record, we agree with the State that the requirements for a finding of
plain error are not met in this case, as the defendant cannot show that a clear and unequivocal
rule of law was breached by the trial court’s omission of the paragraph, that a substantial
right of his was affected, or that consideration of the alleged error is necessary to do
substantial justice. The closing arguments are not included in the record. We note, however,
that the trial court informed defense counsel that she was free to argue in closing that the
defendant had withdrawn from the robbery before the offenses occurred. Moreover, as the
State points out, the court instructed the jury on the lesser-included offenses of facilitation
of the indicted offenses, giving the jury an opportunity to find the defendant guilty of a lesser
role in the crimes. Accordingly, we conclude that the defendant is not entitled to plain error
review on this issue.
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II. Sufficiency of the Evidence
The defendant also challenges the sufficiency of the evidence in support of his
convictions. Specifically, he argues that there was insufficient proof of his intent to
participate in the underlying felony of attempted aggravated robbery. In support, he asserts
that “[t]here was no evidence put forth which would constitute a substantial step on the
defendant’s part towards the commission of an [a]ggravated [r]obbery or [r]obbery.” He also
cites evidence of his extensive drug use on the day of the shooting to argue that he was
incapable of forming the requisite intent for the crimes. The State argues that there was
sufficient evidence from which the jury could have found him guilty of the offenses beyond
a reasonable doubt. We, again, agree with the State.
When the sufficiency of the convicting evidence is challenged on appeal, the relevant
question of the reviewing court is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).
All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).
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“A jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has
the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
For the purposes of this case, felony murder is defined as “[a] killing of another
committed in the perpetration of or attempt to perpetrate any . . . robbery.” Tenn. Code Ann.
§ 39-13-202(a)(2) (2010). “No culpable mental state is required . . . except the intent to
commit the enumerated offenses or acts.” Id. § 39-13-202(b). Proof of the intention to
commit the underlying felony and at what point it existed is a question of fact to be decided
by the jury after consideration of all the facts and circumstances. State v. Buggs, 995 S.W.2d
102, 107 (Tenn. 1999).
Aggravated robbery is defined as the intentional or knowing theft of property from the
person of another by violence or putting the person in fear that is accomplished with a deadly
weapon or where the victim suffers serious bodily injury. Tenn. Code Ann. §§ 39-13-401(a),
-402(a). “A person commits criminal attempt who, acting with the kind of culpability
otherwise required for the offense . . . [a]cts with intent to complete a course of action or
cause a result that would constitute the offense, under the circumstances surrounding the
conduct as the person believes them to be, and the conduct constitutes a substantial step
toward the commission of the offense.” Id. § 39-12-101(a)(3). “Conduct does not constitute
a substantial step under subdivision (a)(3), unless the person’s entire course of action is
corroborative of the intent to commit the offense.” Id. § 39-12-101(b).
Finally, a person is criminally responsible for the conduct of another if, “[a]cting with
intent to promote or assist the commission of the offense, or to benefit in the proceeds or
results of the offense, the person solicits, directs, aids, or attempts to aid another person to
commit the offense.” Id. § 39-11-402(2). Under a theory of criminal responsibility, an
individual’s presence and companionship with the perpetrator of a felony before and after
the commission of an offense are circumstances from which his or her participation in the
crime may be inferred. State v. Caldwell, 80 S.W.3d 31, 38 (Tenn. Crim. App. 2002).
The defendant argues that he did not take any substantial steps toward the commission
of the offense. However, when viewed in the light most favorable to the State, the evidence
shows the following: that the defendant discussed with Bishop the possibility of robbing the
victim for the cash he knew the victim, a marijuana dealer, had on his person; provided
Bishop with a revolver to use in the robbery; drove himself and Bishop to the victim’s
neighborhood, circling the block several times before finally stopping his car down the street
from the victim’s home; lured the victim outside under the pretense of either buying more
marijuana for his personal use or selling him a large bag to supply his business; fled with
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Bishop following the attempted robbery and shooting; and later disposed of the murder
weapon. By convicting the defendant of the indicted offenses, the jury obviously credited
his statement to police, in which he admitted his intent to participate in the robbery, over his
trial testimony in which he disavowed any knowledge of Bishop’s intentions to rob the
victim. We conclude, therefore, that the evidence was sufficient to sustain the defendant’s
convictions for felony murder and attempted aggravated robbery.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.
_________________________________
ALAN E. GLENN, JUDGE
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