State of Tennessee v. Braxton Levar Taylor

04/20/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 3, 2021 Session
STATE OF TENNESSEE v. BRAXTON LEVAR TAYLOR
Appeal from the Circuit Court for Madison County
No. 18-758 Donald H. Allen, Judge
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No. W2020-00437-CCA-R3-CD
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A Madison County jury convicted the defendant, Braxton Levar Taylor, of second-degree
murder and unlawful possession of a firearm for which he received an effective sentence
of twenty-five years’ incarceration. On appeal, the defendant argues the trial court erred
in denying two, pre-trial motions to suppress the victim’s dying declaration, wherein the
victim named the defendant as his shooter, and a photographic lineup which contained his
picture and resulted in two witness identifications. The defendant also argues the trial court
erred by failing to provide a jury instruction concerning the victim’s dying declaration and
in sentencing. Following our review of the briefs, the record, and the applicable law, we
affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and TIMOTHY L. EASTER, JJ., joined.
Patrick S. Rader, Assistant Public Defender - Appellate Division, Franklin, Tennessee (on
appeal) and Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee (at trial),
for the appellant, Braxton Levar Taylor.
Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Bradley F. Champine,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural History
On January 28, 2018, the defendant fired numerous shots at the victim, Daithan
Cobb, in Madison County, Tennessee. Several law enforcement officers and paramedics
responded to the scene of the shooting, including Sergeant Donald Laux of the Jackson
Police Department. While the victim was being treated by paramedics, Sergeant Laux
asked the victim who shot him, and the victim named the defendant. As the investigation
progressed, Sergeant Laux developed the defendant as a suspect, created a photographic
lineup containing the defendant’s picture, and presented the lineup to two witnesses,
Meribeth Holt and Josh Steiner. Both Ms. Holt and Mr. Steiner separately identified the
defendant in the lineup. On February 11, 2018, the victim died from the injuries he suffered
as a result of the shooting, and a Madison County Grand Jury subsequently indicted the
defendant for first-degree murder (count 1) and unlawful possession of a firearm (count 2).
Prior to trial and pertinent to this appeal, the defendant filed motions to exclude the “alleged
‘dying declaration’ of [the] victim” and to suppress the photographic lineup used in the
investigation. The trial court addressed the defendant’s motions in separate hearings.
I. Motion in Limine
The defendant filed a motion in limine “to exclude from evidence any testimony or
reference to the victim’s alleged ‘dying declaration’ identifying the [d]efendant as his
killer.” The defendant argued “there is no indication that [the victim] was under the belief
that his death was imminent on January 28, 2018, when he told law enforcement that the
[d]efendant was his assailant.” As a result, the defendant asserted the statement did “not
meet the strict requirements of Rule 804(b)(2) of the Tennessee Rules of Evidence,” the
dying declaration exception to the rule against hearsay. The State disagreed, and presented
evidence regarding the admissibility of the victim’s statement at the hearing.
Jackson Police Department Captain Jeff Shepard responded to the shooting on
January 28, 2018. When he arrived, Captain Shepard found the victim lying in an alleyway
behind the La Paree Apartments in Jackson, Tennessee. Patrol officers were attempting to
render aid to the victim who had been shot several times in the torso. Captain Shepard
noticed blood and stated the victim was sweating and having trouble breathing. The victim
was quickly placed in an ambulance where he continued to receive medical attention.
Sergeant Laux soon arrived on the scene, and Captain Shepard asked Sergeant Laux
if anyone had questioned the victim as to who shot him. Because Sergeant Laux did not
know if anyone had questioned the victim, the two approached the ambulance in order to
do so. Captain Shepard saw that the victim was sweating, violently shaking, and breathing
through an oxygen mask, and heard Sergeant Laux ask the victim who shot him. According
to Captain Shepard, the victim “looked very scared. His eyes got real (sic) wide. It was
difficult for [the victim] to speak, but he got out, Braxton Taylor.” Paramedics then left
the scene with the victim as he was in critical condition.
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Captain Shepard testified that during his twenty-seven years in law enforcement, he
has frequently encountered victims of gunshot wounds, is familiar with the severity of such
wounds, and has seen someone die in his presence. When asked if he believed the victim
was in fear that his death was imminent when answering Sergeant Laux’s question, Captain
Shepard responded, “[a]bsolutely.” Captain Shepard also noted the victim’s voice was
“broken, raspy, like it was difficult to speak,” but the victim did not lose consciousness
while on the scene.
Sergeant Laux provided additional details surrounding the victim’s statement,
noting he first saw the victim in the back of the ambulance surrounded by paramedics who
“looked like they were working vigorously to take care of [the victim], give him medical
treatment.” In order to ask the victim if he knew who shot him, Sergeant Laux stepped
onto the side of the ambulance. During the interaction, the victim “appeared to be
distressed, was on his back, looked scared,” and the victim’s eyes were wide and “[h]e just
had that . . . panicked and scared look on his face.” Sergeant Laux did not recall if the
victim was sweating but noted he did not see the victim shaking and that the victim’s
oxygen mask “[l]ooked like it was still half-way on.” The victim answered Sergeant
Laux’s question, naming Braxton Taylor as his shooter. Sergeant Laux believed the victim
was in fear of dying when he named the defendant, noting the victim’s voice was “a
panicked sound, crackling, [] like he was having trouble breathing.” Sergeant Laux stated
he did not see the victim lose consciousness, nor was he able to see the victim’s injuries or
blood during the interaction.
Dr. Michael Allen Revelle treated the victim in the emergency room of Jackson-
Madison County General Hospital immediately after the shooting. Upon arrival, the victim
was alert, having trouble breathing, and complaining of chest pain and pain around his
gunshot wounds. Dr. Revelle noted the victim suffered five gunshot wounds to the left leg
and torso, including the chest, abdomen, and flank area. Dr. Revelle classified the victim’s
injuries as life-threatening and his condition as critical as there was a high likelihood the
victim could die from the injuries. Furthermore, Dr. Revelle agreed the victim was on the
verge of death when he arrived at the hospital but medical interventions and the proximity
of the crime scene to the hospital prevented the victim from dying sooner.
Dr. Revelle detailed the life support treatment he provided to the victim, as follows:
We -- paramedics had decompressed his chest, so he had a gunshot wound
to the chest, was a high likelihood he had [a] collapsed lung or blood in that
lung. We converted that to a chest tube or a tube thoracostomy. Basically,
placed a chest tube in the thorax to relieve the air and blood so that his lung
would re-expand, and he would be able to use that lung. We also put a central
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line to the big IV catheter so that we could administer blood, fluids, things of
that nature, if needed. And ultimately, while he was there, we elected to
intubate him or take his airway and breathe for him because of the severity
of his injuries and transfer him to a Level 1 trauma center.
Dr. Revelle believed the victim would have died without the treatment provided but the
victim ultimately needed care from a Level 1 trauma center. As such, a helicopter
transported the victim to Regional One in Memphis. Upon transfer, the victim’s “vital
signs were stable, but again, but based on the severity of his injuries and their location, he
was -- remained in critical condition. Critical but stable.” Dr. Revelle did not provide
additional care to the victim but reviewed the victim’s death certificate and confirmed the
victim died from his injuries on February 11, 2018. The death certificate was entered into
evidence.
Upon its review, the trial court denied the defendant’s motion in limine, both orally
and in writing, finding the victim’s statement qualified as a dying declaration under the
exception to the rule against hearsay. Tenn. R. Evid. 804(b)(2). The State proceeded to
trial with this evidence.
II. Motion to Suppress
The trial court also conducted a pre-trial hearing on the defendant’s motion to
suppress the photographic lineup and the identifications made by Ms. Holt and Mr. Steiner
who witnessed an incident between the defendant and the victim prior to the shooting. The
defendant argued that because Investigator Ron Pugh of the Jackson Police Department
“presented the same lineup” to Ms. Holt and Mr. Steiner, “the identification process
utilized was unnecessarily suggestive, and that this resulted in a misidentification of the
[d]efendant as the perpetrator of the alleged offenses.” The State responded, arguing the
lineup “was not in any way suggestive” and the identifications were reliable. At the
suppression hearing, the State presented evidence regarding the admissibility of the
photographic lineup through the testimony of Ms. Holt, Mr. Steiner, and Investigator Pugh.
Investigator Pugh led the investigation into the victim’s shooting. By January 29,
2018, the day after the shooting, Investigator Pugh had developed the defendant as a
suspect, created a photographic lineup which included the defendant’s picture, and planned
to interview Ms. Holt at her home. However, after arriving at the home and briefly
speaking with Ms. Holt, Investigator Pugh realized that her husband, Mr. Steiner, was also
a witness. Thus, Investigator Pugh separated Mr. Steiner and Ms. Holt before conducting
the interviews. During each interview, Investigator Pugh obtained adopted, written
statements and presented the photographic lineup he created to Mr. Steiner and Ms. Holt.
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The lineup contained six pictures, three on the top row and three on the bottom row,
and included the defendant’s picture which was located in the middle of the bottom row.
Regarding the photographs used in the lineup, Investigator Pugh stated “[t]here may be
some difference” between the lighting on the faces of the top three pictures compared to
the bottom three pictures but, “not much,” and the hairstyles of the men in the pictures
were also “all very similar.” The photographic lineup was entered into evidence.
Investigator Pugh testified he provided general instructions to Mr. Steiner and Ms.
Holt before they reviewed the lineup, stating: “This is going to be a photo lineup. A
suspect might or might not be included in these pictures. Do you see anyone who looks
familiar? . . . And I always tell them, I’d rather you not pick someone as to pick someone
that you’re unsure of.” Investigator Pugh first showed the lineup to Mr. Steiner who
identified the defendant and signed underneath the defendant’s picture. Investigator Pugh
stated he usually has witnesses circle a picture when making an identification, but in this
case, Investigator Pugh did not want Mr. Steiner to “adulterate the top” of the lineup
because he planned to show the lineup to Ms. Holt. Ms. Holt was not present as Mr. Steiner
reviewed the lineup.
Investigator Pugh next showed the lineup to Ms. Holt, noting she was unaware that
Mr. Steiner had previously viewed the lineup and identified the defendant. In order to
protect Mr. Steiner’s identification, Investigator Pugh used a manila file folder to cover the
bottom part of the lineup where Mr. Steiner signed his name though he did not explain to
Ms. Holt why he covered the bottom of the lineup. Upon her review, Ms. Holt also
identified the defendant and signed her name underneath the defendant’s picture.
Investigator Pugh explained he did not suggest to either Mr. Steiner or Ms. Holt that
the suspect’s picture was included in the photographic lineup nor did he suggest who they
should identify. Furthermore, there were no visible markings on the lineup to indicate what
the other witness had marked or selected. Investigator Pugh admitted he could have created
a second lineup but chose not to do so. Regarding the certainty of Mr. Steiner and Ms.
Holt’s identifications, Investigator Pugh stated, “[n]either one hesitated.”
Ms. Holt explained she witnessed the events which led to the shooting on January
28, 2018. She was in the backyard with Mr. Steiner and their children before the shooting
occurred. When Ms. Holt walked to the front of the house to put a baby stroller in her car,
she noticed “a red car that was just stopped like in the middle of the road.” Ms. Holt also
saw a pedestrian, who was later identified as the victim, “walking down the street toward
like our backyard.” As the victim walked, Ms. Holt saw a man, who she later identified as
the defendant, get out of the passenger seat of the red vehicle and yell at the victim.
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Ms. Holt continued to observe the interactions between the defendant and the victim
and heard the defendant yell things like, “‘I’m going to get you; you can run, there’s no
stopping it.’” The defendant then returned to the red vehicle, and the driver of the vehicle
“drove around to cutoff” the victim. The victim ignored the vehicle, the driver, and the
defendant and turned into the alleyway behind Ms. Holt’s home. The defendant and the
driver continued yelling at the victim, stating “‘I’m going to get your a**. You can’t run.
You know what you did. I’m going to shoot you.’” After the victim turned into the
alleyway, the defendant and the driver returned to the red vehicle. Less than five minutes
later, Ms. Holt heard four to six gunshots.
Ms. Holt observed the defendant’s face during the incident but was unable to see
the driver clearly because the driver’s back was turned “most of the time when he got out
of the car.” According to Ms. Holt, the driver only exited the vehicle for about thirty-five
seconds whereas the defendant was outside of the vehicle for a few minutes. Though Ms.
Holt and Mr. Steiner discussed what they witnessed prior to the shooting, Ms. Holt did not
provide Mr. Steiner with a description of the defendant.
After connecting what she observed to the victim’s shooting, Ms. Holt called the
police on January 29, 2018, “to make a tip because [she] thought that the shooting was
related to what we had seen.” Ms. Holt later spoke with Investigator Pugh at her home.
She identified where the events occurred to Investigator Pugh before he conducted separate
interviews with her and Mr. Steiner, speaking with Mr. Steiner first. At the time, Ms. Holt
“was freaking out” and called her mother. Thus, she was not listening to Mr. Steiner’s
interview with Investigator Pugh. When Mr. Steiner’s interview ended, he went inside to
watch their children, and Ms. Holt went outside for her interview.
Regarding the photographic lineup, Ms. Holt explained she did not know the lineup
existed until Investigator Pugh presented it to her during the interview and she did not see
Mr. Steiner review the lineup. She stated Investigator Pugh did not make any promises to
her about whether the suspect was included in the lineup and did not suggest who she
should identify. Ms. Holt recalled Investigator Pugh’s pulling the lineup out of a manila
file folder but stated the manila file folder did not influence her review of the lineup.
Investigator Pugh twice asked Ms. Holt if she recognized anyone in the lineup, and Ms.
Holt pointed to the defendant’s picture in the middle of the bottom row. After confirming
that Ms. Holt was sure about her identification, Investigator Pugh removed the manila file
folder, explained why the folder was used, and stated, “‘Okay. Well, I need you to sign it.
[Mr. Steiner] has also pointed out the same person.’” Ms. Holt stated that when she
selected the defendant’s picture she could not see Mr. Steiner’s signature and “didn’t even
know that he had looked at a lineup at this point.” Ms. Holt noted the pictures in the lineup
“looked pretty similar” but she was “most definitely” confident in her identification of the
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defendant as the person she saw prior to the shooting. During the hearing, Ms. Holt
identified her signature on the lineup and noted she did not know the defendant.
Mr. Steiner also testified, stating he witnessed the events prior to the shooting about
which he spoke to Investigator Pugh the following day. Mr. Steiner recalled Investigator
Pugh’s presenting a photographic lineup to him and asking if he recognized anyone from
the shooting. Mr. Steiner noted that Investigator Pugh did not promise that the suspect was
included in the lineup and did not suggest who Mr. Steiner should select from the lineup.
Mr. Steiner did not see any suggestive markings on the lineup.
Mr. Steiner selected the defendant’s picture as the person he saw prior to the
shooting and signed below the defendant’s picture. He again noted that Ms. Holt was not
present when he reviewed the lineup nor was he present during Ms. Holt’s interview with
Investigator Pugh. When asked if the lighting of the top pictures appeared brighter than
the bottom pictures in the lineup, Mr. Steiner stated, “I mean, I guess you could say that,
yes.”
Upon its review, the trial court issued an oral and written order denying the
defendant’s motion to suppress the photographic lineup finding that the lineup was not
suggestive and the identifications made by Ms. Holt and Mr. Steiner were reliable. The
State proceeded to trial with this evidence.
III. Trial
The trial began with similar testimony from Ms. Holt and Mr. Steiner. While in
front of her home on January 28, 2018, Ms. Holt witnessed a “confrontation” between the
defendant and the victim. Ms. Holt first noticed a red vehicle that had stopped
“sporadic[ly]” in the street and saw the victim walking down the street. The defendant
then exited the passenger side of the red vehicle and yelled at the victim. The driver
remained in the red vehicle. As Ms. Holt walked to her backyard, the victim continued
walking down the street, and the defendant got back into the red vehicle. The vehicle then
“tried to kind of like cut off the [victim],” who “continued to mind his own business, hands
in his pocket, continued to walk.” The driver and the defendant exited the vehicle and
threatened the victim. The driver and the defendant yelled, “‘You can run. I’m going to
get your ass. We’re going to get you.’” Though the driver remained by the vehicle, the
defendant approached the victim during this second confrontation.
The victim then turned into an alleyway, and the defendant “and the driver looked
at each other. They were like, ‘Let’s go get him,’ and then they sped off and cut [the
victim] off at I believe North Highland Avenue.” Ms. Holt believed both the defendant
and the driver stated, “Let’s go get him” but admitted she might not remember the exact
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words of the defendant as she heard the defendant yell several things at the victim during
the confrontation. Ms. Holt then saw the defendant and the driver enter the red vehicle,
drive towards North Highland Avenue, and turn onto Roland Avenue. Less than two
minutes later, Ms. Holt heard four to six gunshots and hoped the gunshots “weren’t related
to the confrontation that [she] had just seen.” However, upon realizing the confrontation
was related to the shooting, Ms. Holt contacted law enforcement the next day and met with
Investigator Pugh. Ms. Holt ultimately provided a written statement detailing the events
she witnessed and identified the defendant in a photographic lineup.
During her testimony, Ms. Holt identified on a map where the confrontation
occurred, marking the movements of the victim, the defendant, and the red vehicle on the
map. Ms. Holt explained that as the confrontation continued, the victim turned down an
alleyway located directly behind her home. Because Ms. Holt’s home is surrounded by a
chain link fence, she was able to see the victim as he continued down the alleyway.
However, once the victim passed by her neighbor’s home, Ms. Holt lost sight of him. The
map was entered into evidence.
During the confrontation, Ms. Holt did not see the victim remove his hands from his
pockets, acknowledge the driver or the defendant, or respond to their remarks. According
to Ms. Holt, the victim “seemed like he wanted absolutely nothing to do with anything that
they were trying to be involved in.” Ms. Holt then reviewed a photograph of the victim
and identified him as the pedestrian involved in the confrontation with the defendant. The
photograph was entered into evidence.
Ms. Holt also identified the defendant at trial and reviewed the photographic lineup
presented to her by Investigator Pugh on January 29, 2018. Ms. Holt stated she identified
the defendant in the lineup as the passenger of the red vehicle, noting she was “one hundred
percent” confident in her identification. The State moved the photographic lineup into
evidence, and the defendant, relying on his motion to suppress, renewed his objection to
the lineup. After a brief bench conference, the trial court overruled the objection and
allowed the lineup to be entered into evidence.
Ms. Holt provided additional details of her review of the photographic lineup and
her identification of the defendant. Before selecting the defendant’s picture, Ms. Holt
reviewed the lineup by “assess[ing] all [of] the pictures to the best of [her] abilities.” Ms.
Holt then selected the defendant’s picture which “stood out amongst all of the rest of them.”
Ms. Holt initially pointed to the defendant’s picture, and Investigator Pugh asked if she
was certain of her identification. Ms. Holt confirmed that she was and then signed her
name below the defendant’s picture. Ms. Holt stated the six pictures used in the lineup all
looked “similar” even though the men in the pictures on the top row might have “a little
lighter skin color instead of having a better lit photo.” Though Ms. Holt acknowledged the
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other pictures in the lineup were similar to the defendant’s picture, she confirmed she saw
the defendant confronting the victim on January 28, 2018.
Ms. Holt, however, was unable to identify the driver of the red vehicle, noting the
driver “seemed like a hype man.” Ms. Holt stated “[I]t was definitely agreed upon that [the
defendant and the driver] were going to try and get [the victim].” Ms. Holt did not see the
defendant or the driver with a gun.
Mr. Steiner also witnessed the confrontation between the victim and the defendant.
While in the backyard with his children, Mr. Steiner overheard an argument, saw a red
vehicle stopped in the middle of the street near the side of his home, and noticed the victim
walking down the street. The victim “was minding his own business” as the defendant
yelled and threatened him. Mr. Steiner did not recall exactly what the defendant yelled but
stated “[I]t was basically that [the defendant] was going to come out and get [the victim].”
After the defendant threatened the victim, the victim walked down the alleyway behind
Mr. Steiner’s home. Mr. Steiner stated there was another African-American man in the red
vehicle with the defendant, and after they threatened the victim, the defendant and the
driver followed the victim in the red vehicle. Mr. Steiner did not see the victim or the
defendant again but heard approximately six gunshots about one minute later. After
reviewing his written statement, Mr. Steiner clarified that the defendant exited the
passenger side of the red vehicle and that he saw the vehicle attempt to cut off the victim
by blocking his pathway. Mr. Steiner did not see a gun during the argument between the
defendant and the victim.
After the shooting, Mr. Steiner and Ms. Holt generally discussed what they observed
as it “was kind of crazy.” The next day, both Ms. Holt and Mr. Steiner separately spoke to
Investigator Pugh. Mr. Steiner provided a statement to Investigator Pugh and identified
the defendant in a photographic lineup as the man he saw confront the victim, noting he
reviewed the lineup before Ms. Holt. Mr. Steiner further stated Investigator Pugh did not
indicate that the suspect was included in the lineup and did not make any suggestions to
Mr. Steiner prior to Mr. Steiner’s identification of the defendant. Mr. Steiner identified the
lineup during trial, noting he signed his name under the defendant’s picture after
identifying the defendant. Mr. Steiner was “very” confident in his identification of the
defendant and also identified the defendant during trial.
Numerous officers from the Jackson Police Department responded to the scene and
participated in the pending investigation. Officer Zachary White responded at
approximately 3:00 p.m. and saw the victim lying in an alleyway near Walnut and North
Highland Avenue. The victim was “on his back[,] in and out of consciousness,” and Officer
White attempted to aid the victim with other officers. In order to locate the victim’s
injuries, Officer White cut off the victim’s jacket, shirt, and pants. Officer White observed
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gunshot wounds to the victim from which the victim was bleeding heavily and applied
pressure to the victim’s wounds until paramedics arrived. Officer White believed the
victim was suffering from serious injuries as the victim was in and out of consciousness
and in shock.
While on the scene, Officer White also took preliminary photographs, located the
victim’s cell phone in the pocket of the victim’s jacket, and noted he did not locate a
weapon or drugs on the victim. The victim’s cell phone and clothing were entered into
evidence, and Officer White stated the victim’s pants had blood stains on them.
Captain Shepard also responded to the scene and saw the victim lying in the
alleyway near North Highland Avenue. The victim was moved to an ambulance, and
Captain Shepard approached the ambulance with Sergeant Laux in order to ask the victim
who shot him. Captain Shepard observed the victim, noting the victim “was in grave
condition. He -- he looked scared. He was -- he was sweating and seemed like he was
struggling to breathe.” Further, Captain Shepard stated the victim’s “eyes got real (sic)
wide. He was shaking. In my experience, he -- he -- he knew he was hurt bad.” Sergeant
Laux then asked the victim who shot him, and the victim responded, “Braxton Taylor.”
The victim responded “in a more of gravelly voice, but it was very clear, and it was -- it
was as if he was trying to make sure that we heard the name clearly.” Paramedics then
insisted on leaving the scene in order to get the victim to a hospital to stabilize his condition.
While the victim was in the ambulance, Captain Shepard believed paramedics were
“working on him” and “pushing medicines.” He thought the victim’s oxygen mask had
been pulled down so he could respond to Sergeant Laux’s question. Captain Shepard did
not see the victim lose consciousness but believed the victim was in shock.
When Sergeant Laux arrived, the victim was in an ambulance receiving medical
attention. He approached the ambulance with Captain Shepard and asked the victim who
shot him. More specifically, Sergeant Laux asked, “Hey, man, can you tell me who shot
you,” and the victim responded, “Braxton Taylor.” Sergeant Laux stated the victim’s “eyes
were big when he turned around to look at me. [The victim] looked very concerned,” “very
scared, [and] worried.” The victim appeared to be in distress and “looked like he was
scared” but Sergeant Laux did not know if the victim was in pain and could not see the
victim’s injuries directly because multiple paramedics surrounded the victim. Sergeant
Laux noted the victim had an oxygen mask covering his face which was “pulled back”
when the victim responded. Sergeant Laux then exited the ambulance which soon left the
scene. Sergeant Laux did not record his conversation with the victim.
Upon learning the defendant’s name and a possible address, Sergeant Laux
attempted to locate the defendant. However, Sergeant Laux was unsuccessful after being
advised that the defendant no longer lived at the possible address. After officers also
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located the possible suspect vehicle at another address, Sergeant Laux went to that location
to assist.
Officer Secily Hasz responded to the scene where she observed the victim and took
photographs. Officer Hasz also went to Jackson-Madison County General Hospital in
order to photograph the victim’s injuries. Four photographs of the victim’s injuries were
entered into evidence including a close-up of the injury to the victim’s thigh.
The victim was not on the scene when Crime Scene Investigator Kevin Mooney
arrived. Investigator Mooney documented and sketched the scene, collected evidence, and
conducted a video “walk through” of the scene. The sketch and video footage were entered
into evidence, and the video was played for the jury. While on the scene, Investigator
Mooney located four spent shell casings in the south end of the alleyway “within eight feet
of one another from end to end.” The spent shell casings were of the same caliber and
brand, “380 auto federal.” Based upon the location of the spent shell casings, Investigator
Mooney opined that “the shooter was basically stationary in that area.” The spent shell
casings were entered into evidence.
Regarding blood on the scene, Investigator Mooney stated he did not find a trail of
blood between where the weapon was fired and where the victim was located after the
shooting. Investigator Mooney explained “[t]he only other blood we found was on the
front porch of this house to the top right. There was a little bit of blood where [the victim]
had gone. I was told [the victim] went and knocked on a door and then went back into the
alley.” Ten photographs documenting the evidence Investigator Moody observed while on
the scene were entered into evidence. He marked on the diagram where he located “a spot
of blood” at the north end of the alleyway.
Investigator Pugh also testified regarding his involvement in the pending
investigation, noting the defendant was developed as a suspect after the victim named the
defendant as the shooter. Investigator Pugh then pulled the defendant’s picture and created
a photographic lineup. During his testimony, Investigator Pugh identified the lineup that
he created, noting he selected pictures of similar looking individuals to complete the lineup
and believed the lineup “turned out very well.” He noted the top left and top right pictures
depicted men who were smiling while the men in the remaining four pictures were not
smiling. Regardless, Investigator Pugh stated the men in the pictures, “all have similar
hairstyles. They all have facial hair above their lip. They’re all basically the same build.
I think this turned out very well.”
Investigator Pugh also detailed the interviews he conducted during the investigation.
On January 29, 2018, Ms. Holt contacted him and agreed to an interview, and Investigator
Pugh went to Ms. Holt’s home with the photographic lineup. After initially speaking to
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Ms. Holt, Investigator Pugh determined Mr. Steiner was also a potential witness and he
separated the two. Investigator Pugh interviewed Ms. Holt first but presented the
photographic lineup to Mr. Steiner first. Upon his review of the lineup, Mr. Steiner
identified the defendant as the man who confronted the victim prior to the shooting. Mr.
Steiner signed his name below the defendant’s picture. Investigator Pugh then presented
the lineup to Ms. Holt, who also identified the defendant as the man who confronted the
victim. In doing so, Investigator Pugh used a manila file folder to cover Mr. Steiner’s
signature. Investigator Pugh noted both Ms. Holt and Mr. Steiner were certain in their
identifications of the defendant. Investigator Pugh used the same lineup with Mr. Steiner
and Ms. Holt and stated he could have produced a second lineup but noted “when you’ve
got two witnesses who are willing to talk to you right now, I don’t like breaking away and,
you know, I don’t want to lose either witness.”
Investigator Pugh stated U.S. Marshalls confiscated the defendant’s cell phone and
arrested him at an address on East Forest on January 31, 2018. After advising the defendant
of his Miranda rights, Investigator Pugh and Sergeant Nick Donald conducted a recorded
interview with the defendant, and the defendant signed an adopted written statement. The
recording of the interview, the defendant’s signed waiver form, and the defendant’s written
statement were entered into evidence, and the recording was played for the jury.
Investigator Pugh also read a portion of the defendant’s written statement to the jury
wherein the defendant said: “‘On Sunday, I was not in any alley. I was at the house on
East Forest. I haven’t seen [the victim] since school. I have not seen him or shot him.’”
As the investigation progressed, Investigator Pugh noted he was unable to identify
the driver of the red vehicle but obtained a search warrant for the defendant’s cell phone
which was entered into evidence. From the cell phone records, Investigator Pugh hoped to
determine the location of the defendant’s cell phone at the time of the shooting in
comparison to the defendant’s statement that he was at a family member’s home on East
Forest the day of the shooting. Investigator Pugh noted the shooting occurred in the area
of North Highland Avenue around 3:00 p.m. on January 28, 2018, and stated East Forest
is “not very far” from where the victim was shot.
David Walker, the custodian and keeper of telephone records for AT&T, and
Investigator Darrell Listenbee provided additional testimony regarding the search of the
defendant’s cell phone and its whereabouts at the time of the shooting. Upon receiving the
search warrant for the defendant’s cell phone, Mr. Walker provided law enforcement with
hundreds of pages of records which were entered into evidence. The records identified the
cell phone as a “Tracfone wireless” and listed the precise cell phone number associated
with the phone. Additional records, called “the mobility with cell location records,”
included call records and cell location records for the defendant’s cell phone on January
28, 2018, as requested. Mr. Walker explained that the records included information
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regarding the cell phone towers utilized by the defendant’s cell phone when making a call,
and this information would allow for an investigator to determine both when and where a
telephone call was made on the phone. Mr. Walker testified that the records do not identify
who was in possession of the cell phone at the time the calls were made.
Investigator Listenbee reviewed the defendant’s cell phone records as provided by
AT&T. In doing so, Investigator Listenbee utilized CellHawk, a program designed to assist
law enforcement which “analyze[s] and plot[s] the different cellphone records.”
Investigator Listenbee identified four maps of the City of Jackson that included the data he
obtained from CellHawk for the defendant’s cell phone records. The CellHawk documents
were entered into evidence and described in further detail by Investigator Listenbee. Each
map included a GPS coordinate of the cell phone tower used based upon the raw data input
from the AT&T records around the time of the shooting on January 28, 2018. The maps
also indicated the location of the defendant’s cell phone in comparison to the location of
the shooting.
As indicated on the maps, the defendant’s cell phone pinged off of a tower located
at 1225 North Highland Avenue at 3:09 p.m. At 3:16 p.m., the defendant’s cell phone
pinged off of a tower located on the 45 Bypass, to the west of the shooting. At 3:17 p.m.,
the defendant’s cell phone pinged off of a tower located near the 45 Bypass and Interstate
40. At 3:24 p.m., the defendant’s cell phone pinged off of a cell tower north of the 45
Bypass and past Interstate 40.
In summary, Investigator Listenbee stated the defendant’s cell phone pinged off of
a cell tower in the area of the shooting at the time of the shooting. In the fourteen minutes
after the shooting, the defendant’s cell phone traveled “northbound away from the scene of
the crime.” Therefore, the defendant’s cell phone was not in the immediate vicinity of the
shooting for the entirety of the day on January 28, 2018. However, Investigator Listenbee
acknowledged East Forest is contained within the area of the cell phone tower that also
encompasses North Highland Avenue and noted he did not know who was in possession
of the cell phone as it travelled northbound.
Investigator Pugh detailed how the investigation continued in the weeks following
the shooting. Investigator Pugh learned that hours after the shooting, the defendant called
the police station and “asked if he had any warrants.” Investigator Pugh confronted the
defendant with this information during his interview, and the defendant admitted to making
the phone call. The defendant explained that “his cousin had been pulled over, and the
police pointed a gun at him and asked him if he was Braxton Taylor and that his cousin
looked like him, so he called to see if he had warrants.” Investigator Pugh explained he
did not issue warrants for the defendant’s arrest until January 29, 2018, after Mr. Steiner
and Ms. Holt identified the defendant.
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On February 2, 2018, Investigator Pugh tried to obtain a statement from the victim
while the victim was being treated at Regional One. The victim, however, was
unresponsive. While at Regional One, Investigator Pugh collected a bullet that was
removed from the victim’s body during surgery. After the victim died on February 11,
2018, Investigator Pugh attended the victim’s autopsy.
On February 22, 2018, Investigator Pugh attended the defendant’s preliminary
hearing in Jackson City Court. After the hearing, he learned of another potential witness,
Daniel Leggett, who the State presented at trial. Mr. Leggett admitted to pleading guilty
to driving on a suspended license and stated he was in the holding cell of Jackson City
Court with the defendant on February 22, 2018. Mr. Leggett identified the defendant at
trial and stated that while in the holding cell, Mr. Leggett overheard the defendant confess
to the crimes for which he was charged. Specifically, Mr. Leggett stated that when the
defendant was asked if he was guilty of his charges, the defendant responded, “[‘Y]es,
yeah, fool, I did it, but I ain’t going to tell them that,[’] talking about the police officers
and what not.” Mr. Leggett explained the defendant “was the main focus of everyone’s
attention” because “he was the only one back there with such high charges.” Mr. Leggett
was unaware of any other person in the holding cell who was also charged with murder.
Approximately two days after his release, Mr. Leggett saw Mr. Steiner, whom he
had known for about two years, at a bar. While talking with Mr. Steiner, Mr. Leggett
learned the defendant was charged with murder and that Mr. Steiner was also a witness,
and Mr. Steiner learned that Mr. Leggett heard the defendant admit guilt while in the
holding cell. As such, Mr. Leggett provided his contact information to Ms. Holt, and
shortly after this exchange, Investigator Pugh contacted Mr. Leggett. Mr. Leggett provided
a written statement to Investigator Pugh which detailed that he overheard the defendant
admit guilt in the holding cell. When he spoke with Investigator Pugh, Mr. Leggett’s
criminal case had already been resolved, and Mr. Leggett stated he was not offered
anything in exchange for his testimony by either Investigator Pugh or the district attorney’s
office.
Mr. Leggett stated prior to being charged with driving on a suspended license he
had not been to jail or charged with a crime. However, he admitted to being charged with
theft of property in Milan City Court in 2014. Mr. Leggett explained that he paid off his
fines for the misdemeanor theft charge and “had not thought about that since you just
brought it up just now.”
Investigator Pugh testified that he received Mr. Leggett’s contact information from
Ms. Holt and called Mr. Leggett as a result. Investigator Pugh also confirmed the defendant
would have been in the holding cell on February 22, 2018, for his preliminary hearing and
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noted that Mr. Leggett told him that Marquese Wood and Eric England were also in the
holding cell that day. Investigator Pugh, however, did not speak to Mr. Wood or Mr.
England as part of his investigation but did verify with Jackson City Court that Mr. England
was in jail around the same time the defendant and Mr. Leggett were in jail. According to
Investigator Pugh, Mr. Leggett’s case was resolved when Mr. Leggett provided
information on the defendant’s case.
Finally, Dr. Katrina Van Pelt testified as an expert in the field of forensic pathology
in the manner and cause of death. Dr. Van Pelt performed the autopsy of the victim on
February 12, 2018, the day after the victim was pronounced dead at Regional One. Dr.
Van Pelt noted the victim suffered four gunshot wounds which caused four entrance
wounds and three exit wounds. She detailed the wounds further, noting one bullet entered
the left side of the victim’s mid-back and exited through the front of his chest. A second
bullet also entered through the mid-back and exited through the victim’s mid-torso. A third
bullet entered through the victim’s right buttock and exited above the left hip. And, the
fourth bullet entered through the right thigh but did not exit the victim’s body, rather, the
projectile was found during surgery. Dr. Van Pelt acknowledged the gunshots were fired
from an “indeterminate range,” meaning she did not know the range of the shots but noted
it was not a contact wound as there was no soot or stippling found on the victim’s body.
She determined the victim’s cause of death to be “[g]unshot wounds of torso and right
thigh” and the manner of death to be homicide.
In performing the autopsy, Dr. Van Pelt observed “a lot of medical intervention”
associated with the victim’s gunshot wounds, noting the victim received significant
medical treatment and surgery between the time of the shooting and his death. Dr. Van
Pelt, however, ruled out the possibility that the medical treatment caused the victim’s death,
stating, “I went through the medical records and at autopsy, there was nothing egregious
or anything that would have made me suspicious for anything.” Furthermore, due to the
medical intervention provided to the victim, Dr. Van Pelt was unable to determine an exact
wound path for his injuries. Dr. Van Pelt’s autopsy report that she completed with Dr.
Erica Curry was entered into evidence. The State then rested its case.
The defendant moved for a judgment of acquittal which was denied by the trial
court. Marquese Wood then testified on behalf of the defendant, stating he was currently
an inmate in the county jail as he awaited transfer to the Tennessee Department of
Correction for an aggravated burglary conviction. On February 22, 2018, Mr. Wood was
in Madison County Jail where he encountered the defendant. According to Mr. Wood, the
defendant “never made no statement about shooting nobody.” Mr. Wood stated he was
beside the defendant and heard everything the defendant said while in jail but also admitted
they were separated at various times. Further, Mr. Wood noted he was not interviewed by
law enforcement regarding the defendant and stated he was not offered anything in
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exchange for his testimony. Despite admitting to prior theft and aggravated burglary
convictions, Mr. Wood believes he is an honest person. Mr. Wood also admitted to being
shot in the head, chest, and arm but stated it did not affect his memory. The defendant did
not present any additional proof.
Upon its deliberations, the jury convicted the defendant of second-degree murder
and unlawful possession of a weapon and imposed fines of $7500 and $2500, respectively.
After a sentencing hearing, the trial court waived the fines and imposed an effective
sentence of twenty-five years’ incarceration which was to be run consecutively to a
previously imposed six-year sentence. The defendant filed a motion for a new trial which
was denied by the trial court. This timely appeal followed.
Analysis
The defendant challenges two, pre-trial evidentiary rulings of the trial court
concerning the denial of the defendant’s motions to suppress the victim’s statement as a
dying declaration and the photographic lineup as unduly suggestive and unreliable. We
will address each in turn.
Suppression issues on appeal are subject to a well-established standard of review.
Appellate courts are bound by a trial court’s findings of facts determined after a
suppression hearing unless the evidence preponderates against them. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996); State v. Matthew T. McGee, No. E2011-01756-CCA-R3-CD,
2012 WL 4017776, at *2 (Tenn. Crim. App. Sept. 13, 2012). “Questions of credibility of
the witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at
23. Appellate courts should consider the entire record, affording the prevailing party “the
strongest legitimate view of the evidence and all reasonable inferences drawn from that
evidence.” McGee, No. E2011-01756-CCA-R3-CD, 2012 WL 4017776, at *2 (citing State
v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001)); see also State v. Sanders, 452 S.W.3d 300,
306 (Tenn. 2014). However, applying the law to the factual findings of the trial court is a
question of law, which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626,
629 (Tenn. 1997); State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). When reviewing the
trial court’s ruling on a motion to suppress, appellate courts may consider the evidence
presented at both the suppression hearing and the subsequent trial. State v. Henning, 975
S.W.2d 290, 299 (Tenn. 1998).
I. The Dying Declaration
The defendant asserts the trial court erred in denying his motion to suppress the
victim’s statement wherein he named the defendant as his shooter, arguing the statement
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did not meet the requirements of the dying declaration exception to the rule against hearsay.
Generally, hearsay “is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.
R. Evid. 801(c). Though hearsay is not admissible evidence, certain exceptions to the rule
against hearsay exist. One such exception allows for the admission of a statement made
under the belief of impending death, otherwise known as a dying declaration. Tenn. R.
Evid. 804(b)(2). This exception provides: “In a prosecution for homicide or in a civil
action or proceeding, a statement made by a declarant while believing that the declarant’s
death was imminent and concerning the cause or circumstances of what the declarant
believed to be impending death.” Id. “The rationale for this hearsay exception is that one
facing imminent death will be truthful for fear of ‘eternal consequences.’” State v.
Hampton, 24 S.W.3d 823, 828 (Tenn. Crim. App. 2000) (quoting Neil P. Cohen, et
al., Tennessee Law of Evidence, § 804(b)(2.1) at 599 (3d ed.1995)).
This Court has stated that in order for a statement to be admissible as a dying
declaration, five elements must be met:
(1) The declarant must be dead at the time of the trial;
(2) the statement is admissible only in the prosecution of a criminal
homicide;
(3) the declarant must be the victim of the homicide;
(4) the statement must concern the cause or the circumstances of the death;
and
(5) the declarant must have made the statement under the belief that death
was imminent.
Id. at 828-29 (citation omitted). Thus, the dying declaration exception requires that “the
declarant must have a ‘fixed and solemn belief that death is inevitable and near at hand.’”
Id. at 829 (quoting 41 CJS Homicide § 274 (1991)). The final element “provides the indicia
of reliability and truth that justifies admission of the statement.” State v. David Smith, No.
W2009-02002-CCA-R3-CD, 2010 WL 2482326, at *6 (Tenn. Crim. App. June 17, 2010)
(citation omitted). However, “it is not necessary that the declarant state unequivocally a
belief that death is imminent.” Id. (citing State v. Maruja Paquita Coleman, No. 01C01-
9401-CR-00029, 1997 WL 438169, at *5 (Tenn. Crim. App. July 31, 1997) (footnotes
omitted), perm. app. denied (Tenn. Apr. 13, 1998)). “Awareness of impending death has
been inferred from the language and condition of the declarant, the facts and circumstances
surrounding the statement, and medical testimony concerning the seriousness of the
victim’s condition.” Id.Here, the defendant does not challenge the first four elements as a bar to the
admissibility of the victim’s statement, and the record makes clear these elements were
- 17 -
met. Rather, the defendant argues the victim did not believe his death was imminent when
he named the defendant as his shooter, and thus, the statement cannot satisfy the last
element required for admissibility as a dying declaration. Id. at 828-29. We, however,
disagree as the record is replete with evidence supporting the trial court’s determination
that the victim believed his death was imminent when he made the statement.
In examining the admissibility of the victim’s statement as a dying declaration, the
trial court stated:
The [c]ourt found that based on the circumstances, the victim’s
identification of [the defendant] as the shooter qualifies as a [d]ying
[d]eclaration. The victim did ultimately die from his injuries, is clearly
unavailable for trial, this is a criminal homicide prosecution, the declarant is
the victim, the statement concerned the manner and circumstances
surrounding his death, and based on all the evidence at the hearing, it was
made while the victim was under the belief his death was imminent.
We agree with the trial court’s assessment. The record includes testimony from
Officer White, Sergeant Laux, Captain Shepard, Dr. Revelle, and Dr. Van Pelt regarding
the victim’s condition after the defendant shot him four times. Upon his arrival to the
scene, Officer White stated the victim was fading in and out of consciousness, was in shock,
and was bleeding heavily from multiple gunshot wounds. Officer White believed the
defendant was suffering from serious injuries, and the victim was moved to an ambulance
for additional medical attention.
While in the ambulance, Captain Shepard observed the victim, stating the victim
was in a grave condition, looked scared, was sweating and shaking, and was struggling to
breath. Sergeant Laux stated that as the victim received medical attention in the ambulance,
the victim appeared to be in distress, looked concerned, scared, and worried, and was using
an oxygen mask. At this point, Sergeant Laux asked the victim who shot him, and the
victim named the defendant. No additional questions were permitted as paramedics
quickly left the scene in order to transport the victim to the nearest hospital.
When the victim arrived at the hospital, Dr. Revelle stated he was in critical
condition with life-threatening injuries as a result of four gunshot wounds. Dr. Revelle
provided life support treatment, which included intubation, before transferring the victim
to a Level 1 trauma center where he subsequently died. Dr. Van Pelt testified the victim
died from the gunshot wounds despite significant medical intervention. Accordingly, we
conclude that the trial court did not err in admitting the victim’s statement into evidence
under the dying declaration exception to the rule against hearsay.
- 18 -
In support of his argument, the defendant asserts that the victim did not lose
consciousness while on the scene, Captain Shepard and Sergeant Laux gave varying
accounts as to whether the victim was shaking or sweating, Sergeant Laux did not observe
any blood when talking to the victim nor could he “determine the source of [the victim’s]
injuries,” and the victim’s “medical condition at the hospital supports a finding that [the
victim’s] death was not imminent.” We again disagree as the evidence showed that at the
time of the statement, the victim had been shot four times, was in shock, having trouble
breathing, was bleeding, and was fading in and out of consciousness. The victim received
medical attention on the scene and required additional medical treatment in the emergency
room of Jackson-Madison County General Hospital and from a Level I trauma center prior
to his death. Though he died in the weeks following the shooting, Dr. Revelle indicated
that the proximity of the crime scene to the hospital and the treatment provided by both the
paramedics and emergency room personnel prevented the victim from dying sooner. From
these facts and circumstances, it can be inferred that the victim believed his death was
imminent when he made the statement to Sergeant Laux. As such, the trial court did not
err in admitting the statement as a dying declaration, and the defendant is not entitled to
relief.
II. The Photographic Lineup
The defendant argues the trial court erred “by allowing into evidence [Ms.] Holt and
Mr. Steiner’s pre-trial and in-court identifications of [the defendant], which were based on
an unduly suggestive photo lineup.” The defendant asserts the lineup was suggestive
because the defendant’s picture “was ‘grossly dissimilar’ from the other five photos due to
the poor lighting in his photo.” The defendant states that “[w]hile all six photos depict
similarly aged black men with similar hairstyles and varying degrees of facial hair, [the
defendant’s] photo is indiscernible with the exception of his outline.” The defendant
further argues “[i]f this Court finds that the photo lineup was improperly suggestive, it
should also find that the identification procedure was unreliable under the totality of the
circumstances.” The defendant suggests that “[t]he facts that [Ms.] Holt and Mr. Steiner
chose the most obscure, vague photo in the lineup must render their reliability suspect
because it suggests they could only recall that the passenger was a young black man.” The
State disagrees, arguing “the trial court properly denied the motion [to suppress] after
finding that the lineup was not unduly suggestive and that it was reliable.” We agree with
the State.
Pursuant to the Due Process Clause of the Fifth Amendment to the United States
Constitution, the pretrial identification of a defendant by photograph will only be
suppressed if “the photographic identification procedure was so impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons
v. United States, 390 U.S. 377, 384 (1968). “[D]ue process concerns arise only when law
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enforcement officers use an identification procedure that is both suggestive and
unnecessary,” and only if the eyewitness’s identification “is tainted by police
arrangement.” Perry v. New Hampshire, 565 U.S. 228, 238-39 (2012). Suppression of the
photographic identification is not always necessary even if the police do use a suggestive
and unnecessary procedure. Id. at 239. Instead, “a photographic identification is
admissible unless, based upon the totality of the circumstances, ‘the confrontation
conducted . . . was so unnecessarily suggestive and conductive to irreparable mistaken
identification that [the accused] was denied due process of law.’” State v. Hall, 976 S.W.2d
121, 153 (Tenn. 1998) (quoting Stovall v. Denno, 388 U.S. 293, 301-02 (1967)).
In Biggers, the United States Supreme Court set forth the test for determining
whether the pretrial identification of a defendant is admissible as evidence at trial. First,
this two-part analysis requires the trial court to determine whether the identification
procedure was unduly suggestive. Biggers, 409 U.S. at 198. The identification cannot be
“conducted in such an impermissibly suggestive manner to create a substantial likelihood
of irreparable misidentification.” State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998). If
the court finds the identification procedure was unduly suggestive, then the second question
is whether the identification was reliable despite this undue suggestion. Biggers, 409 U.S.
at 198-99. When making this determination, courts are to consider the following:
[T]he opportunity of the witness to view the criminal at the time of the crime,
the witness’ degree of attention, the accuracy of the witness’ prior description
of the criminal, the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and the
confrontation.
Id. at 199-200. The corrupting effect of the suggestive procedure is weighed against these
factors. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). If, after considering these factors,
the court concludes the identification was so unduly suggestive that it violated the
defendant’s due process rights, then the court must exclude the photographic lineup from
evidence. State v. Shanklin, 608 S.W.2d 596, 598 (Tenn. Crim. App. 1980). The court,
however, need not apply these factors if it does not first conclude law enforcement used an
unnecessarily or impermissibly suggestive procedure or that the identification procedure
used created a substantial likelihood of irreparable misidentification. Biggers, 211 S.W.3d
at 749.
In denying the defendant’s motion to suppress, the trial court held:
The [c]ourt specifically found that the line-up was not suggestive, that
the photos were all very similar, and that the identification by both witnesses
was positive. The [c]ourt further found that Investigator Pugh did not engage
- 20 -
in any behavior that could have suggested which photo either witness should
select. [Mr.] Steiner had no hesitation about his identification of the
defendant’s photo and his identification was based on his own observations
of the defendant. Similarly, [Ms.] Holt sounded very credible to the [c]ourt,
she had no hesitation about identifying the defendant, remembered the events
from the incident very clearly, and when she viewed the line-up, based on
the totality of the circumstances, could not have seen any markings or
anything about the line-up that would have affected her identification one
way or the other. Based on the above both witnesses’ identification was not
suggestive and was reliable.
We agree with the assessment of the trial court. Though the defendant argues the
lineup was unduly suggestive based upon the difference in lighting between the top and
bottom pictures in the lineup, the record does not support this contention. Rather, the
record demonstrates Investigator Pugh created a photographic lineup containing six images
of similar looking individuals. In particular, he chose images of individuals with similar
build, complexion, hair, and facial hair and believed the lineup turned out well. Nothing
in the record indicates and the defendant has failed to show that the “identification
procedure was so impermissibly suggestive as to give rise to a very substantial likelihood
of irreparable misidentification.” Simmons, 390 U.S. at 384.
Furthermore, Mr. Steiner and Ms. Holt’s identifications of the defendant were
reliable based on the totality of the circumstances. Both Mr. Steiner and Ms. Holt
witnessed the defendant confront and threaten the victim. They reviewed the lineup the
day after witnessing the confrontation, and both were certain in their identification of the
defendant. Accordingly, we conclude the trial court did not err when denying the
defendant’s request to suppress the lineup or Mr. Steiner and Ms. Holt’s identifications of
the defendant. The defendant is not entitled to relief on this issue.
III. Jury Instructions
The defendant contends the trial court failed to properly instruct the jury concerning
the dying declaration. Specifically, the defendant argues the trial court committed
reversible error by failing to provide the jury with the Tennessee Pattern Jury Instruction
42.15. The defendant requests plain error review of this issue, acknowledging he failed to
raise the issue in his motion for a new trial. The State concedes the trial court erred in
failing to instruct the jury concerning the victim’s dying declaration. However, the State
asserts the defendant is not entitled to plain error relief because the error was harmless, and
as such, the defendant cannot meet “his burden of demonstrating that consideration of the
error is necessary to do substantial justice.” We agree with the State.
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Under the plain error doctrine, a defendant may obtain relief only if all of the
following criteria are satisfied: (1) the record clearly establishes what occurred in the trial
court, (2) a clear and unequivocal rule of law was breached, (3) a substantial right of the
accused was adversely affected, (4) the issue was not waived for tactical reasons, and (5)
consideration of the error is necessary to do substantial justice. State v. Martin, 505 S.W.3d
492, 504 (Tenn. 2016); State v. Hester, 324 S.W.3d 1, 56 (Tenn. 2010).
The defendant argues he was prejudiced by the trial court’s failure to instruct the
jury regarding the dying declaration. Tennessee Pattern Jury Instruction 42.15 provides:
Testimony has been presented of a dying declaration allegedly made by the
deceased. A dying declaration is a statement made with a sense of impending
death, and for this reason it is to be considered as equivalent to a statement
made under oath. You must first determine what statements, if any, were
made by the deceased. If any such statements were made, then you should
determine what weight or credit, if any, should be given to them. You should
also consider the circumstances prevailing at the time the declaration is
alleged to have been made.
This testimony comes to you through others, and it is not to be considered as
if the deceased had appeared at this trial and testified as did other
witnesses. The deceased is not in condition, frequently, to give calm
attention to the question to which [he] makes [his] statement. You should
take into consideration the reasonableness or unreasonableness of the
statements allegedly made by the deceased; the contradictions, if any,
by [his] interest or lack of interest, [his] intelligence, and [his] position and
situation to know the facts. You should bear in mind that the defendant was
not present when the declaration was allegedly made and had neither the
opportunity to make suggestions, nor call attention to the circumstances
in [his] favor, nor to cross-examine to show inaccuracies of memory, nor
expose bias from passion or prejudice. For these reasons, this evidence
should be received by you with caution.
7 Tenn. Prac. Pattern Jury Instr. T.P.I. Crim. 42.15. The trial court’s failure to instruct the
jury on the weight to be given the victim’s dying declaration usually constitutes prejudicial
error. See State v. Branam, 604 S.W.2d 892, 895 (Tenn. Crim. App. 1980); Humphreys v.
State, 64 S.W.2d 5 (1933); Pearson v. State, 226 S.W. 538 (1920).
Here, the record makes clear the trial court erred by failing to instruct the jury
regarding the dying declaration. However, the record also contains plenty of evidence
supporting the veracity of the victim’s dying declaration, rendering the error harmless.
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Both Mr. Steiner and Ms. Holt overheard the defendant threaten the victim, observed the
defendant follow the victim as he turned down the alleyway, and heard gunshots within
minutes of the confrontation. The day after the shooting, Ms. Holt and Mr. Steiner
positively identified the defendant in a photographic lineup. In addition, the defendant’s
cell phone was in the area of the shooting when it occurred, and the defendant called the
police station in the hours after the shooting to ask if there was a warrant for his arrest.
Based upon this evidence, the record indicates the trial court’s error in failing to instruct
on the weight to be given to the victim’s dying declaration could not have affected the
outcome of the trial as the record contains sufficient evidence supporting the defendant’s
convictions aside from the dying declaration. As a result, the defendant has failed to show
how consideration of the trial court’s error is necessary to do substantial justice, and he is
not entitled to plain error relief. Martin, 505 S.W.3d at 504; Hester, 324 S.W.3d at 56; see
Wooten v. State, 103 S.W.2d 324, 326 (1937) (finding the trial court erred in failing to
instruct the jury on the deceased’s dying declaration but refusing to reverse the conviction
because it was “plainly apparent that this error did not affect the result” as there was “no
issue whatever on the record as to the fact that [the defendant] shot the deceased.”).
Accordingly, the trial court’s failure to instruct on the weight to be given the dying
declaration was harmless, and plain error relief is not warranted. The defendant is not
entitled to relief.
IV. Cumulative Error
The defendant asserts “the trial court’s error in admitting [the victim’s] purported
dying declaration into evidence, failure to instruct the jury on how to weigh [the victim’s]
statement, and error in admitting [Ms.] Holt and Mr. Steiner’s identification of [the
defendant] into evidence more probably than not affected the verdict and deprived [the
defendant] of a fair trial.” The defendant argues the errors alleged, “taken either
individually or in conjunction with one another,” had a cumulative effect on the jury’s
verdict, requiring reversal of the convictions and remand for a new trial. The State asserts
“there was not more than one error in the trial proceedings,” “[t]here are no errors to
cumulate,” and the defendant is not entitled to cumulative error relief. We agree with the
State.
The cumulative error doctrine applies when multiple errors were committed during
trial, each of which alone would have constituted harmless error, but in the aggregate have
a cumulative effect on the proceedings so great the defendant’s right to a fair trial can only
be preserved through reversal. State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010).
Circumstances warranting reversal of a conviction under the cumulative error doctrine
“remain rare.” Id. The defendant raised two evidentiary issues and a jury instruction issue
on appeal. Of those issues, we have discerned only one error, that being the trial court
committed harmless error in failing to properly instruct the jury regarding the weight to be
- 23 -
given to the victim’s dying declaration. Relying on our foregoing analysis, the record
makes clear the State presented more than enough evidence of the defendant’s guilt, and
the single instance of harmless error found on appeal does not entitle the defendant to relief
under the cumulative error doctrine. This issue is without merit.
V. Sentencing
Finally, the defendant argues the trial court abused its discretion in enhancing his
sentence for second-degree murder above the statutory minimum. Before imposing a
sentence upon a defendant, the trial court must first consider these factors: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) the evidence and information offered
by the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
Administrative Office of the Courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf about
sentencing. See Tenn. Code Ann. § 40-35-210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001). The trial court must also consider the potential or lack of potential for
rehabilitation or treatment of the defendant in determining the sentence alternative or
length of a term to be imposed. Tenn. Code Ann. § 40-35-103.
When the record establishes the sentence imposed by the trial court was within the
appropriate range and reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). The trial court must state on the record the factors it considered and the
reasons for ordering the sentence imposed. Tenn. Code Ann. § 40-35-210 (e); Bise, 380
S.W.3d at 706. If a trial court misapplies an enhancement or mitigating factor in passing
sentence, said error will not remove the presumption of reasonableness from its sentencing
determination. Bise, 380 S.W.3d at 709. This Court will uphold the trial court’s sentencing
decision “so long as it is within the appropriate range and the record demonstrates that the
sentence is otherwise in compliance with the purposes and principles listed by statute.” Id.
at 709-10. The party challenging the sentence on appeal bears the burden of establishing
that the sentence was improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.
Here, the record indicates the trial court sentenced the defendant as a Range I,
standard offender for his crime of second-degree murder. Second-degree murder is a Class
A felony. Tenn. Code Ann. § 39-13-210(c)(1). The potential sentencing range for a Range
I offender convicted of a Class A felony is between fifteen and twenty-five years. Tenn.
Code Ann. § 40-35-112(a)(1). The defendant received a twenty-five-year sentence for the
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second-degree murder conviction.1 Therefore, the sentence imposed by the trial court fell
within the appropriate sentencing range for the defendant’s offense and is presumed
reasonable by this Court. Bise, 380 S.W. 3d at 707; State v. Caudle, 388 S.W.3d 273, 278-
79 (Tenn. 2012).
The defendant argues the trial court improperly enhanced his sentences by relying
on his alleged gang affiliation, but we disagree. The record indicates the trial court properly
considered the statutory factors required under Tennessee Code Annotated section 40-35-
210 prior to sentencing the defendant. Specifically, the trial court reviewed the presentence
report, the evidence presented at the trial and sentencing hearing, the arguments of counsel,
the nature and characteristics of the criminal conduct involved, the applicable enhancement
and mitigating factors, and the defendant’s potential for rehabilitation. The presentence
report listed the defendant’s criminal history which included convictions for aggravated
burglary, theft of property over $2500, shoplifting, and speeding along with criminal
behavior committed while in custody for his present crimes.
In assessing the applicable enhancement and mitigating factors, the trial court
determined no mitigating factors applied to the defendant’s conviction other than “some
slight consideration for the fact that [the defendant] is a young offender.” Tenn. Code Ann.
§ 40-35-113(6). However, the trial court found numerous enhancement factors applied,
including: (1) “[t]he defendant has a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range;” (2) “[t]he
defendant was a leader in the commission of an offense involving two (2) or more criminal
actors;” (8) “[t]he defendant, before trial or sentencing, failed to comply with the conditions
of a sentence involving release into the community;” (9) “[t]he defendant possessed or
employed a firearm, explosive device or other deadly weapon during the commission of
the offense;” and (13) “[a]t the time the felony was committed” the defendant was
“[r]eleased on probation” or “[o]n some form of judicially ordered release.” Tenn. Code
Ann. § 40-35-114 (1), (2), (8), (9), & (13). The trial court also noted the defendant “is a
high risk to reoffend” as demonstrated by the presentence report.
Despite these findings, the defendant argues the trial court improperly weighed his
alleged gang affiliation when sentencing him to the top of the applicable range. The record
indicates the trial court did discuss the defendant’s gang affiliation, as follows:
Now, I also find, according to this report, he is a documented gang
member. I find that to be proven. According to the report, he’s identified
1
The jury convicted the defendant of the Class A misdemeanor of unlawful possession of a weapon
in count 2, and the trial court imposed a concurrent sentence of eleven months and twenty-nine days. The
defendant does not challenge this portion of his sentence on appeal.
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and confirmed as of July the 10th, 2019 to be a member of the Crips criminal
street gang, which, again, I think shows perhaps some motive as to why this
murder occurred back in January of 2018.
Before imposing the sentence, the trial court also stated, “Again, I think the gang member
ties is something that I’m looking at.” Based upon these comments, the defendant argues
the trial court erred in sentencing him to the maximum sentence within the appropriate
range, asserting the trial court improperly weighed his alleged gang affiliation against him.
We disagree. Though the trial court commented on the defendant’s gang affiliation before
imposing the sentence, nothing in the record indicates the trial court improperly relied on
the defendant’s gang affiliation in determining the sentence length. Rather, the trial court
stated on the record the five specific enhancement factors it considered and was relying on
in support of the sentence imposed. Tenn. Code Ann. § 40-35-210(e); Bise, 380 S.W.3d at
706. Contrary to the defendant’s claim, the trial court properly considered the statutory
criteria in finding the defendant to be a Range I, standard offender and imposed a within-
range sentence for the defendant’s conviction for second-degree murder to be served in
confinement. Nothing in the record indicates the length of the sentence imposed was
improper, and our supreme court has made clear “sentences should be upheld so long as
the statutory purposes and principles, along with any applicable enhancement and
mitigating factors, have been properly addressed.” Bise, 380 S.W.3d at 706. The defendant
is not entitled to relief.
Conclusion
Based on the foregoing, we affirm the judgments of the trial court.
____________________________________
J. ROSS DYER, JUDGE
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