State of Tennessee v. Marquel Stewart

06/08/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

January 4, 2018 Session

STATE OF TENNESSEE v. MARQUEL STEWART

Appeal from the Criminal Court for Shelby County

No. 14-01173 Lee V. Coffee, Judge

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No. W2017-00299-CCA-R3-CD

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The Defendant, Marquel Stewart, was convicted by a Shelby County jury of aggravated

robbery, see T.C.A. § 39-13-402, for which he received a sentence of eight years. In this

appeal, he argues that the trial court erred in (1) conditioning his motion to continue the

trial upon revocation of his bond, (2) admitting a shirt and bandana into evidence without

proper authentication or chain of custody, and (3) admitting the Defendant’s jail phone

calls into evidence. Upon our review, we affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ALAN E. GLENN, JJ., joined.

M. Hayden Lawyer, Memphis, Tennessee, for the Defendant, Marquel Stewart.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Stephen Ragland,

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

OPINION

The instant offense occurred on August 11, 2013, as Kyle Foster, the victim, was

withdrawing money from an automated teller machine (ATM). At that time, the

Defendant robbed the victim at gunpoint and attempted to escape in the victim’s car. The

Defendant could not start the car, ran behind a nearby building, and then into a forest

across the street. The police were called, and, following a K-9 search, the Defendant was

apprehended and identified by the victim and an eyewitness. Significantly, the victim

noted that the Defendant was wearing a white shirt, sunglasses, and a red bandana over

his face during the robbery, and the eyewitness saw the Defendant run into the forest with

white and red clothing in his hands. These items were recovered by a responding officer

near the location where the Defendant was hiding.

Trial. Kyle Foster, the victim, testified in large part consistently with the above

facts. He added that his assailant, whom he identified at trial as the Defendant, was

wearing a white t-shirt, sunglasses, and red bandana over his mouth at the time of the

offense. The Defendant took $40 and the victim’s wallet, which contained his driver’s

license and social security card. The victim stated that another person, later identified as

Derwin Gray, drove up to the ATM and saw the Defendant run behind Crystal Palace.

The victim then called 911, the recording of which was admitted into evidence and

played for the jury. On cross-examination, the victim confirmed that the Defendant was

not wearing the white shirt, sunglasses, or red bandana when he identified him to police.

On redirect, the victim explained that he was able to identify the Defendant by his

haircut, the shape of his head, and his body type.

Derwin Gray, the eyewitness to part of the offense, testified consistently with the

above facts. In addition, Gray saw the Defendant wearing shorts and carrying “some red

and white” clothing as he ran behind Crystal Palace. Shortly thereafter, he again saw the

Defendant with no shirt on, holding red and white clothes. The Defendant ran from

behind Crystal Palace, made eye contact with Gray, and ran toward the forest. After the

Defendant was apprehended by police officers, Gray identified the Defendant as the same

man he saw fleeing the scene. On cross-examination, Gray testified that he never saw the

Defendant with a gun or sunglasses. Gray did not attempt to follow the Defendant but

confirmed that he told police he “drove off to see where [the Defendant] went.” On

redirect, Gray explained that, as he was leaving, he glanced over in the direction that the

Defendant fled but did not attempt to chase him.

Memphis Police Officer Jacques Pope responded to the instant offense. Upon his

arrival, a perimeter was set up around the forest and a K-9 unit was called in to search for

the Defendant. The K-9 unit located the Defendant wearing jeans with no shirt. The

Defendant was returned to the scene and the victim positively identified the Defendant as

the perpetrator of the offense. On cross-examination, Officer Pope testified that the

description of the suspect identified “a male Black wearing dark colored jeans, a white

shirt, and [] a red bandana over his face.”

Former Memphis Police Officer Maverick Rasmussen responded to the instant

offense and retrieved a white shirt and red cloth from the area near where the Defendant

was apprehended. Officer Rasmussen identified exhibit 3 as the evidence he retrieved

and noted his initials and officer identification number on the evidence bag. He

explained that he retrieved this evidence because it matched the physical description of

the Defendant and because the Defendant was shirtless when he was brought out of the

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forest. On cross-examination, Officer Rasmussen testified that he did not consider the

red cloth to be a bandana. On redirect, he identified an envelope with his initials and

property labels on it which contained a property sheet and currency that was also

retrieved at the scene: specifically, one twenty-dollar bill and one single-dollar bill. On

recross, he confirmed that he processed the currency evidence during the same

investigation that he processed the white shirt and red cloth.

Investigator Ruben Ramirez of the Shelby County Sheriff’s Department monitored

recorded inmate phone calls for investigative purposes. He explained that each call is

prompted with an advisement that the call is subject to monitoring and recording, and

there are signs posted in the jail advising the same. Investigator Ramirez created a

compact disc (CD), admitted into evidence as exhibit 7, upon which he downloaded

several of the Defendant’s jail calls. Investigator Ramirez noted his handwriting, name,

initials, and employee number on the CD. The Defendant objected to the admission of

the CD, and the trial conducted a hearing outside the presence of the jury. After

argument of the parties, the trial court overruled the Defendant’s objection. The jury

returned to the courtroom and the State then played exhibit 7 for the jury. In the first call,

the Defendant told his mother that he “messed up” and asked whether his ex-girlfriend

had gotten the truck he left at Crystal Palace, stating that he left the keys under the

floormat. In the second call, the Defendant told his mom that he was in jail for the

aggravated robbery at the Crystal Palace parking lot and told his ex-girlfriend that he

messed up and “didn’t know what [he] was thinking.”

Defense Proof. The Defendant testified that, on the evening of August 11, 2013,

he drove to and parked at Crystal Palace to go for a run in the area. He indicated his

route on an aerial map and stated that when he was returning to his truck, he saw

someone pointing at him. He explained that he was a witness to a crime on June 24,

2013, and that the man pointing at him looked like one of the suspects in that case. He

was scared that the man pointing at him might have been connected to the prior crime,

and he fled out of fear. He ran behind Crystal Palace, crossed the street, and ran into the

forest. He said he saw the police and K-9 unit enter the forest and that he laid down on

the ground until the police found him. He told the police he did not have a gun “at least

ten times,” that the officer kicked him in the face and chest, and that the K-9 bit him

multiple times. He eventually told the police that he “gave the gun to someone just

because [he] feared for [his] life.” He testified that he did not actually have a gun and

lied to the police because he was scared. He stated that when he was arrested, he only

had his white shirt and twenty-one dollars on his person. He testified that he did not rob

the victim and did not have his wallet or identification. He said he did not recall anyone

trying to identify him after he was arrested.

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The Defendant explained that he was scared and “knew then [he] had messed up

by telling [the police] that [he] had a gun when [he] didn’t have a gun.” He testified that

he was brought down to the police station and placed in an interrogation room at which

point he attempted to commit suicide by tying his shoelace to the table and around his

neck. Several officers found the Defendant before he lost consciousness and escorted

him to the hospital to be assessed by a psychological doctor. He was then returned to jail

and confirmed making the two jail phones calls included in exhibit 7. He testified that he

said, “I messed up” because he lied to the police about having a gun. He confirmed that

his mother asked if he hurt anyone and he responded that he did not. He stated that the

second person on the call was his ex-girlfriend, that he had gone to see another woman

that day, and that is why he told her he “messed up.” He said his statement, “I don’t

know what I was thinking” referred to him seeing another woman that was not his ex-

girlfriend. He confirmed he knew he was being recorded. On cross-examination, the

Defendant confirmed that he lived near the area of the robbery and could have run from

his house but instead chose to drive to Crystal Palace before his run. He testified that the

white shirt in exhibit 3 was his but that he had never seen the red bandana before.

Following the conclusion of the proof, the jury convicted the Defendant of

aggravated robbery. The trial court later sentenced the Defendant to eight years at 85%

as a Range I, Standard Offender. The Defendant filed a motion for new trial which was

denied by the trial court on January 27, 2017. A timely notice of appeal was filed, and

this case is now properly before this court.

ANALYSIS

I. Continuation of Case. The Defendant argues that the trial court erred in

permitting the Defendant to continue the case only if his bond were revoked. The

Defendant contends that he was not aware of the red bandana until the morning of trial

and that the trial court’s attempt at punitive pre-trial detention of the Defendant was

improper. The State responds that the Defendant had ample opportunity to review the

physical evidence held by the State but chose not to do so. The State also argues that the

Defendant has waived his claim that the trial court’s attempt at punitive pre-trial

detention was improper because the Defendant failed to raise this argument in his motion

for new trial. Nevertheless, the State asserts that the Defendant’s argument is meritless,

and the trial court did not abuse its discretion.

The granting of a continuance lies within the sound discretion of the trial court,

and this court will not reverse a decision regarding a continuance unless the trial court

abused its discretion. State v. Schmeiderer, 319 S.W.3d 607, 617 (Tenn. 2010) (citing

State v. Odom, 137 S.W.3d 572, 589 (Tenn. 2004)). “‘An abuse of discretion is

demonstrated by showing that the failure to grant a continuance denied defendant a fair

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trial or that it could be reasonably concluded that a different result would have followed

had the continuance been granted.’” Id. (quoting State v. Hines, 919 S.W.2d 573, 579

(Tenn. 1995)). The party requesting the continuance has the burden of showing that the

court’s action was prejudicial. State v. Goodman, 643 S.W.2d 375, 378 (Tenn. Crim.

App. 1982). “The only test is whether the defendant has been deprived of his rights and

an injustice done.” Id.

The record shows that on the morning of trial, May 9, 2016, defense counsel

requested a continuance on the basis that the State failed to disclose a red bandana

allegedly worn by the Defendant in the robbery. Defense counsel asserted that there was

no mention of this evidence in the discovery it received from the State and that the

admission of such evidence would directly affect their defense at trial. The State

responded that this case was previously set for trial on September 2, 2015, and was

continued due to the Defendant’s failure to appear. The State explained that it invited

defense counsel to examine the evidence in the State’s possession multiple times, and

defense counsel failed to do so. The State argued that the white shirt and red bandana

were referenced in the 911 call and witness statements and that the evidence was not

withheld from defense counsel. The trial court noted that the crime occurred on August

11, 2013, that the case was originally set for trial on February 19, 2015, and that the trial

had since been continued twice with report dates in between. The court noted that it was

defense counsel’s obligation to examine the State’s evidence and that any factual

questions regarding that evidence were to be explored in testimony at trial. The court

stated that it would grant the continuance but would revoke the Defendant’s bond upon

doing so because “this ha[d] interfered with the administration of justice[.]” Defense

counsel withdrew the motion for a continuance and requested to move forward with trial.

The trial court noted that it was 12:30 p.m., that the proof would begin at 1:30 p.m. the

next day, and that defense counsel could investigate any factual issues regarding the red

bandana during that time.

As an initial matter, the State correctly observes that the Defendant did not argue

that the trial court’s grant of a continuance amounted to a punitive detention in its motion

for new trial or at the hearing on the same. His motion states, in pertinent part, “[t]hat the

[c]ourt erred in not allowing the [d]efense to continue the case when they were not told

about physical evidence in the possession of the State until the day of trial.” Relief on

appeal is typically not available when a party is “responsible for an error” or has “failed

to take whatever action was reasonably available to prevent or nullify the harmful effect

of any error.” See Tenn. R. App. P. 36(a). Moreover, “A party may not raise an issue for

the first time in the appellate court.” State v. Turner, 919 S.W.2d 346, 356-57 (Tenn.

Crim. App. 1995). As such, the Defendant’s argument regarding punitive pretrial

detention is waived.

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Waiver notwithstanding, the record reflects that there was no late disclosure by the

State and that the Defendant had ample opportunity to review the State’s evidence before

trial. The Defendant argues that he was prejudiced because the State withheld this

evidence and did not make the defense aware of the red bandana until the morning of

trial. However, the record clearly reflects that defense counsel had multiple invitations

from the State to view the physical evidence they possessed related to the case. On oral

argument, defense counsel conceded that he was aware that the State held physical

evidence and chose not to investigate. Furthermore, the record shows that the trial court

gave defense counsel an additional day to review any evidence before the actual trial was

to start. The record does not reflect nor has the Defendant shown that the trial court

abused its discretion in this matter. The Defendant is not entitled to relief.

II. Admission of Clothing. Next, the Defendant argues that the trial court erred

in admitting the white shirt and red bandana into evidence because the State failed to

properly authenticate the evidence or establish an unbroken chain of custody. The

Defendant asserts that the trial court used the wrong legal standard of review in admitting

the evidence. The State responds that the trial court used the correct standard of review

in admitting this evidence because the proof showed that the clothing was worn by the

Defendant during the commission of the crime and discarded shortly thereafter.

“Generally, the admissibility of evidence rests within the trial court’s sound

discretion, and the appellate court does not interfere with the exercise of that discretion

unless a clear abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d

799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). A trial

court is found to have abused its discretion when it applies “an incorrect legal standard or

reaches a conclusion that is ‘illogical or unreasonable and causes an injustice to the party

complaining.’” Lewis, 235 S.W.3d at 141 (quoting State v. Ruiz, 204 S.W.3d 772, 778

(Tenn. 2006).

“The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to the court to support a finding by the

trier of fact that the matter in question is what its proponent claims.” Tenn. R. Evid.

901(a). Therefore, the question of whether tangible evidence has been properly

authenticated is left to the discretion of the trial court. State v. Cannon, 254 S.W.3d 287,

295 (Tenn. 2008) (citing State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Beech,

744 S.W.2d 585, 587 (Tenn. Crim. App. 1987)). The trial court’s determination will not

be disturbed in the absence of a clearly mistaken exercise of such discretion. State v.

Holbrooks, 983 S.W.2d 697, 701 (Tenn. Crim. App. 1998 (citing Beech, 744 S.W.2d at

587). Therefore, we will not reverse unless the “‘court applied an incorrect legal

standard, or reached a decision which is against logic or reasoning that caused an

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injustice to the party complaining.’” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)

(quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

To admit tangible evidence, the party offering the evidence must either introduce a

witness who is able to identify the evidence or must establish an unbroken chain of

custody. Cannon, 254 S.W.3d at 296; Holbrooks, 983 S.W.2d at 700 (citing State v.

Goodman, 643 S.W.2d 375, 381 (Tenn. Crim. App. 1982)). This rule ensures that “‘there

has been no tampering, loss, substitution, or mistake with respect to the evidence.’”

Scott, 33 S.W.3d at 760 (quoting State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim.

App. 1993)). However, absolute certainty of identification is not required. See State v.

Kilpatrick, 52 S.W.3d 81, 87 (Tenn. Crim. App. 2000) (citing Ritter v. State, 462 S.W.2d

247, 250 (Tenn. Crim. App. 1970)). In addition, the Tennessee Supreme Court has

observed:

Even though each link in the chain of custody should be sufficiently

established, this rule does not require that the identity of tangible evidence

be proven beyond all possibility of doubt; nor should the State be required

to establish facts which exclude every possibility of tampering. An item is

not necessarily precluded from admission as evidence if the State fails to

call all of the witnesses who handled the item. Accordingly, when the facts

and circumstances that surround tangible evidence reasonably establish the

identity and integrity of the evidence, the trial court should admit the item

into evidence. On the other hand, if the State fails to offer sufficient proof

of the chain of custody, the evidence should not be admitted . . . unless both

identity and integrity can be demonstrated by other appropriate means.

Cannon, 254 S.W.3d at 295-96 (internal citations and quotation omitted).

The Defendant argues that the trial court used the wrong standard of review in

admitting these items into evidence. In his brief, the Defendant re-characterizes

Tennessee Rule of Evidence 901(a) as stating “authentication or identification [is] a

condition precedent to admissibility.” As noted above, Tennessee Rule of Evidence

901(a) in full states, “The requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to the court to support a

finding by the trier of fact that the matter in question is what its proponent claims.” To

the extent that the Defendant argues that the trial court used the wrong legal standard in

admitting the evidence, we disagree.

The record shows that the State adequately authenticated and established the chain

of custody for the white shirt and red bandana. First, the Defendant admitted that the

white shirt in question was in fact his shirt. Additionally, the victim described the

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Defendant as wearing a white shirt and red bandana during the robbery and identified the

same clothing at trial. Derwin Gray observed the shirtless Defendant holding red and

white clothing in his hand as he fled the scene. Finally, Officer Rasmussen recovered the

white shirt and red bandana nearby the location of Defendant’s arrest and identified the

same clothing in its evidence bag at trial. Accordingly, the trial court properly admitted

the white shirt and red bandana into evidence, and the Defendant is not entitled to relief.

III. Admission of Jail Phone Calls. The Defendant argues that the trial court

erred in admitting the recordings of his jail phone calls into evidence because they were

ambiguous and irrelevant. The State responds that the Defendant’s statements were

directly relevant to the issues at trial.

Evidence is considered relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401. Evidence which is

not determined to be relevant is inadmissible. Tenn. R. Evid. 402. In addition,

“[a]lthough relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Tenn. R. Evid. 403. Unfair prejudice has been defined by the

Tennessee Supreme Court as “‘[a]n undue tendency to suggest decision on an improper

basis, commonly, though not necessarily an emotional one.’” State v. Banks, 564 S.W.2d

947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Committee Notes).

“Prejudice becomes unfair when the primary purpose of the evidence at issue is to elicit

emotions of ‘bias, sympathy, hatred, contempt, retribution, or horror.” State v. Young,

196 S.W.3d 85, 106 (Tenn. 2006) (citations and internal quotation marks omitted).

Whether evidence is relevant is a decision left to the discretion of the trial court, and this

court will not overturn a trial court’s determination regarding relevancy without a

showing that the trial court abused its discretion. State v. Brown, 373 S.W.3d 565, 573

(Tenn. Crim. App. 2011) (citing State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App.

1995)). Additionally, as noted above, “the admissibility of evidence rests within the trial

court’s sound discretion, and the appellate court does not interfere with the exercise of

that discretion unless a clear abuse appears on the face of the record.” Franklin, 308

S.W.3d at 809 (citing Lewis, 235 S.W.3d at 141).

Prior to the admission of exhibit 7, the jail recordings of the Defendant, defense

counsel objected based on relevance. The trial court overruled the objection on several

grounds. Initially, it reasoned that “[the statements in the recordings] are the admissions

or statements made in furtherance of a commission of a crime.” During the jury-out

hearing, the trial court relied upon State v. Munn, 56 S.W.3d 486 (Tenn. 2001), and

further noted that “case law is abundantly clear that jail calls made by a defendant, jail

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tapes are in fact admissible[.]” The State noted that the calls were provided to defense

counsel on October 14, 2014, and that the parties had discussed the calls several times

before trial. Defense counsel then argued that the Defendant’s statements, such as “I

messed up,” were irrelevant, ambiguous, and did not indicate any guilt by the Defendant.

The State responded that the Defendant’s statements were relevant, made immediately

after the Defendant was placed in jail, and constituted inculpatory statements. The trial

court determined that there was “no reasonable justifiable expectation of privacy” for

these phone calls and that they were admissible based upon State v. Ross, 49 S.W.3d 833

(Tenn. 2001), and Smith v. Maryland, 442 U.S. 735 (1979). The trial court further found

that the Defendant’s statements, including “I messed up,” “I’m in jail, 201 Poplar,” “go

get the truck,” and “don’t know what I was thinking” all constituted statements made in

furtherance of a conspiracy to cover up a crime which were admissible based on State v.

Walker, 910 S.W.2d 381 (Tenn. 1995). The trial court deemed the statements to be

relevant fact admissions and not hearsay.

Based on our review of the record, we agree with the trial court, and conclude that

exhibit 7 was probative of the Defendant’s identity and involvement in the instant

offense. Discerning no abuse of discretion, the trial court properly admitted the

Defendant’s jail phone calls. He is not entitled to relief.

CONCLUSION

Based on the foregoing reasoning and analysis, we affirm the judgment of the trial

court.

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CAMILLE R. MCMULLEN, JUDGE

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