State of Tennessee v. Marico Means

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 2, 2016

STATE OF TENNESSEE v. MARICO MEANS

Appeal from the Criminal Court for Shelby County

No. 12-06018 Paula L. Skahan, Judge

No. W2015-00989-CCA-R3-CD - Filed March 29, 2016

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Defendant, Marico Means, appeals his conviction of aggravated robbery and his sentence

of eight years and six months at eighty-five percent. He argues that the trial court erred

by denying his motion to suppress evidence of the victim‟s pre-trial identifications and

that the trial court erred by considering improper evidence during sentencing. We affirm

the judgment of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Charles Edgar Waldman, Memphis, Tennessee, for the appellant, Marico Means.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

This is Defendant‟s direct appeal from his conviction for aggravated robbery and

his sentence of eight years and six months as a standard offender. The following

evidence was presented at trial.

Charnetta Taylor testified that she was thirty years old and lived in Memphis. On

the afternoon of Sunday, March 20, 2012, Ms. Taylor was returning home from visiting

her grandmother. Ms. Taylor parked her car on the side of the street near her house, and

then began walking up her driveway to her house. Ms. Taylor was carrying a dress, a

pink bag, and a purse, which contained her wallet and cell phone. As she walked toward

her house, she looked back and saw a car pull up behind hers on the street. A man

opened the door on the back passenger‟s side and exited the car. The man was black and

tall and wore a white t-shirt and red shorts. The man began moving toward Ms. Taylor in

a “fast walk.” Ms. Taylor saw a gun in his left hand by his side and was afraid. She

dropped her things, screamed, and ran across the street. Ms. Taylor explained that she

did not try to go inside her own house because she was worried that she would not have

time to unlock the door and get inside safely. Ms. Taylor attempted to get inside her

neighbors‟ house but could not, so she hid underneath the truck parked in their front yard.

A couple of men came from the back of her neighbors‟ house and went to the truck. One

of them let Ms. Taylor use a phone to call 911.

When Ms. Taylor looked back across the street to her driveway, she saw her things

on the ground, but she did not see her purse, and she did not see the man with the gun or

the car in which he arrived. Ms. Taylor‟s purse was never recovered.

Crime scene investigator Tristan Brown of the Memphis Police Department

testified that, on May 20, 2012, he was dispatched to the crime scene. He found a cell

phone and a pair of broken eyeglasses on the road near Ms. Taylor‟s car. Mr. Brown

photographed these items and obtained some fingerprints from the cell phone, which he

sent for further analysis. Those fingerprints did not yield an identifying match.

Detective Dressels Fox of the Memphis Police Department was assigned to this

case the day after the incident occurred. Ms. Taylor denied that the phone or glasses

belonged to her and said that she did not notice those items when she got out of her car.

A few weeks after the incident, Detective Fox showed Ms. Taylor several photographs

stored on the phone, and she identified Defendant as the man with the gun. Ms. Taylor

testified that she “was able to get a good look at him so [she] knew what the person

looked like.” She did not know Defendant. In one of the photographs, Defendant was

wearing a white t-shirt and red shorts. Defendant was not the only person in the

photographs.

The name Marico Simpson was found in the phone‟s data. A text message sent to

the phone at 12:43 a.m. on May 20, 2012, said, “I love you, Rico.” Another text

message, sent to the phone at 1:31 p.m. on the same day, said, “A, you want me to get

Gary to take us to hit that lick goon.” The term “lick” is commonly used to refer to a

robbery. Eventually, Detective Fox learned that Defendant‟s name was Marico Means.

Detective Fox composed a six photograph lineup containing a photograph of Defendant.

On July 6, 2012, Detective Fox showed the lineup to Ms. Taylor, and she again identified

Defendant out of the lineup as the man who approached her with a gun.

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Analysis

Defendant raises two issues on appeal: (1) whether the trial court erred in denying

his motion to suppress the victim‟s out-of-court identifications, and (2) whether the trial

court abused its discretion by sentencing Defendant based on improper evidence. As to

the first issue, Defendant asserts that the circumstances surrounding the victim‟s viewing

of the cell phone photographs were impermissibly suggestive and that the victim‟s

resulting identification of Defendant in the cell phone photographs and identification of

Defendant in the six-photograph lineup were unreliable. The State argues that, even if

the procedure used in the initial identification was impermissibly suggestive, the victim‟s

identification was still admissible because it was sufficiently reliable under the

circumstances.

To avoid exclusion from trial, “an identification must not have been conducted in

such an impermissibly suggestive manner as to create a substantial likelihood of

irreparable misidentification.” State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998) (citing

Simmons v. United States, 390 U.S. 377 (1968)). Nonetheless, an identification that is

made pursuant to a procedure that is conducted in an impermissibly suggestive manner

will not be excluded if the witness‟s identification was reliable under the circumstances.

State v. Philpott, 882 S.W.2d 394, 400 (Tenn. Crim. App. 1994). Courts use a multi-

factor inquiry to determine reliability, which includes “the opportunity of the witness to

view the criminal at the time of the crime; the witness‟s degree of attention at the time of

the crime; the accuracy of the witness‟s prior description; the level of certainty

demonstrated at the confrontation; [and] the time elapsed between the crime and the

confrontation.” Id. (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)) (internal numbering

omitted). At a suppression hearing, the findings of fact made by the trial court are

binding on appellate review, unless the defendant makes a showing that the evidence

contained in the record preponderates against them. State v. Reid, 213 S.W.3d 792, 825

(Tenn. 2006) (citations omitted).

Prior to trial, Defendant filed a motion to suppress the identification, and the trial

court held a hearing. At the hearing, Ms. Taylor testified that she first noticed a car

driving slowly down the street. When the car stopped behind her and she saw the man

exiting the car, she “was trying to see maybe he wanted something or wanted directions,

and that‟s how [she] got a good look at him.” She could not recall how long she looked

at the man, but it was “enough to figure out what he wanted.” She estimated she may

have looked at him for eight to ten seconds or ten to fifteen seconds before she ran away.

Ms. Taylor told the police that the man “had on like some red shorts, a white t-shirt, [and]

he was kind of built . . . but not big or skinny.” The shorts were long “basketball shorts.”

She also reported that the man had “dark complexion.” Ms. Taylor did not notice what

kind of footwear the man was wearing and did not see a brand name or logo on his

clothing. The man had a “low fade” haircut. Ms. Taylor also reported that the man who

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approached her “was about six feet, two hundred and something pounds.” Ms. Taylor did

not see anyone else in the car from which the man came.

About a month after the incident, Ms. Taylor went to the police station, and was

shown some photographs from the phone that was found at the crime scene. Ms. Taylor

could not remember the exact number of photographs, but there were more than one or

two. There was another black male beside Defendant in one of the photographs, and Ms.

Taylor did not recognize him. Ms. Taylor recognized Defendant‟s face, but she did not

know him and did not know his name. Detective Fox recalled that there were two or

three different black males in the photographs. The photographs were in color, not black

and white. Both Ms. Taylor and Detective Fox maintained that Detective Fox did not

indicate that they thought anyone in the photographs was responsible for the incident;

Detective Fox he “just wanted [Ms. Taylor] to identify to see if [she] recognize[d]

anybody in the phone.”

The cell phone was entered into evidence, and there were seventeen photographs

on the phone. Detective Fox said that he showed the photos to Ms. Taylor “one by one.”

There were two other males in the photographs. The first photograph on the phone was

not Defendant. The photograph that Ms. Taylor identified Defendant on the phone was

not used in the subsequent lineup.

A few weeks later, Ms. Taylor returned to the police station and was shown a

photograph lineup with “pictures of different people on there, and they told [her] to pick

out the guy that was on there, and [she] picked him out and circled him.” She also signed

the bottom of the lineup. Ms. Taylor insisted that she “didn‟t forget his face from the

beginning.” Both Ms. Taylor and Detective Fox maintained that Detective Fox did not

tell Ms. Taylor that the man who robbed her was in the lineup or that the man in the

photographs on the cellphone was in the lineup.

After the hearing, the trial court took the matter under advisement and issued a

written ruling denying the motion. The trial court found that the show up procedure used

in showing the victim photographs of Defendant on the cell phone was suggestive,

observing that “[t]here are no pictures on the recovered cell phone that display reasonable

alternative choices other than the picture of Defendant.” However, the trial court found

that the victim‟s identification was nonetheless reliable and therefore admissible based on

the following:

Although Ms. Taylor had less than fifteen seconds to identify the man

exiting the vehicle, it was daytime and she had an unobstructed view from

her position as [the car] approached. Ms. Taylor admitted she concentrated

on the gun, but the accuracy of her description offered at the scene—the

white shirt and red shorts that the man holding the gun wore, the fact that

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the cell phone was not on the road as she had initially exited her vehicle—

indicate that she was quite aware of her surroundings at the time. The one-

month span of time between the incident and Ms. Taylor‟s initial

identification is a slightly negative factor. However, Ms. Taylor‟s certainty

during the show-up and subsequent line-up procedures renders the

identification sufficiently reliable.

We agree with the trial court. “It has long been recognized that showups are

inherently suggestive and unfair to the accused.” State v. Thomas, 780 S.W.2d 379, 381

(Tenn. Crim. App. 1989). The evidence does not preponderate against the trial court‟s

finding that the procedure used in this case was impermissibly suggestive because, on the

whole, the photographs on the phone unfairly and inordinately focused on Defendant,

rather than presenting an unbiased array of individuals from which the victim could

choose. In the photograph that the victim first identified Defendant, he was wearing what

appeared to be the exact same outfit as the man who approached the victim with a gun.

However, as stated above, an identification may still be admissible as long as the

record shows that the identification was reliable under the circumstances. Philpott, 882

S.W.2d at 400. Weighing the Biggers factors for reliability, the trial court found

essentially that the victim (1) had an adequate opportunity to observe the perpetrator; (2)

paid careful attention to the perpetrator as the crime unfolded; (3) gave a detailed and

accurate description of the perpetrator when interviewed at the crime scene; and (4)

identified Defendant with a high level of certainty. Although these four factors favored

reliability, the trial court noted that the temporal distance between the crime and the

identification militated slightly against reliability. We agree that the victim‟s pre-trial

identification of Defendant was reliable despite the suggestiveness of the procedure used

in this case. Defendant is not entitled to relief on this issue.

As to Defendant‟s second issue, he argues that his sentence of eight years and six

months at eighty-five percent is excessive because the trial court improperly relied on

evidence obtained from Defendant‟s Facebook page which suggests he is affiliated with a

gang. At the sentencing hearing, the State introduced several photographs from

Defendant‟s Facebook page. Two of the photographs show Defendant holding or

displaying various quantities of cash. One photograph shows Defendant displaying a

black pistol, and another shows Defendant holding what appears to be the magazine for a

pistol. Three photographs show Defendant wearing a letterman jacket with “MOB

MUZIK GANG” across the back. The “O” in “MOB” is replaced with a billiards eight ball.

Two of these photos show the same words painted on a wall as a mural with “Boo Dirty”

above them. Gang Expert Byron Willis of the Memphis Police Department testified that

a rapper known as O.G. Boo Dirty was a member of the Young Mob, a criminal street

gang in Memphis. Detective Willis also testified that the eight ball is a symbol associated

with the Young Mob. In one of these three photographs, Defendant is flashing a gang

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sign with his left hand, which Detective Willis said is associated with the Young Mob. In

several other photographs, Defendant is flashing the same sign. Another photograph

shows a tattoo of “MOB” with the eight ball on Defendant‟s left forearm. After hearing

argument from the parties, the trial court found that Defendant was involved in criminal

gang activity. The trial court also found that Defendant has a history of criminal behavior

based on his criminal record which was contained in the presentence investigative report.

When a defendant challenges the length or manner of service of a within-range

sentence, this Court reviews the trial court‟s sentencing decision under an abuse of

discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d

273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This

presumption applies to “within-range sentencing decisions that reflect a proper

application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at

707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal

standard, or reache[s] a decision which is against logic or reasoning that cause[s] an

injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)

(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard

does not permit an appellate court to substitute its judgment for that of the trial court.

Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the

burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing

Comm‟n Cmts.

In reaching its decision, the trial court must consider the following 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) evidence and

information offered by the parties on enhancement and mitigating factors; (6) any

statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; (7) any statement by the appellant in his own

behalf; and (8) the potential for rehabilitation or treatment. Bise, 380 S.W.3d at 697-98

(citing T.C.A. § 40-35-210(b)). Additionally, the sentence imposed “should be no greater

than that deserved for the offense committed” and also “should be the least severe

measure necessary to achieve the purposes for which the sentence is imposed.” T.C.A. §

40-35-103(2), (4).

Our supreme court has “continued to emphasize the need for trial courts to „place

on the record, either orally or in writing, what enhancement or mitigating factors were

considered, if any, as well as the reasons for the sentence, in order to ensure fair and

consistent sentencing.‟” State v. King, 432 S.W.3d 316, 322 (Tenn. 2014) (quoting Bise,

380 S.W.3d at 705-06 n.41). However, “a trial court‟s misapplication of an enhancement

or mitigating factor does not invalidate the sentence imposed unless the trial court wholly

departed from the [sentencing act]. So long as there are other reasons consistent with the

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purposes and principles of sentencing, as provided by statute, a sentence imposed by the

trial court within the appropriate range should be upheld.” Bise, 380 S.W.3d at 706.

In this case, Defendant was convicted of aggravated robbery, a class B felony.

T.C.A. § 39-13-402(b). The applicable sentencing range for a standard offender is eight

to twelve years. T.C.A. § 40-35-112(a)(2). Even though Defendant was classified as a

standard offender, the mandatory release eligibility for this particular crime is eighty-five

percent. T.C.A. § 40-35-501(k)(1). Defendant was sentenced within the applicable range

and received the proper release eligibility. The trial court found one enhancement factor

applicable, that Defendant “has a previous history of criminal convictions or criminal

behavior, in addition to those necessary to establish the appropriate range.” T.C.A. § 40-

35-114(1). We cannot say that the trial court abused its discretion in sentencing

Defendant. Although the trial court found that the evidence presented at the sentencing

hearing supported the finding that Defendant was involved in gang activity as part of his

history of criminal behavior, it also said that “[i]t‟s a very small thing out of the entire

picture as an enhancement factor.” Assuming, without deciding, that consideration of

Defendant‟s gang affiliation was improper, the trial court‟s application of this

enhancement factor is still supported by the record because Defendant has a prior

misdemeanor conviction of theft under $500. The trial court did not “wholly depart[]”

from our sentencing scheme, and Defendant‟s sentence is consistent with the purposes

and principles of that scheme. See Bise, 380 S.W.3d at 706. Defendant is not entitled to

relief on this basis.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

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TIMOTHY L. EASTER, JUDGE

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