# FILED
September 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9708-CR- 0 036 7 ) vs. ) Davidson County ) MICHAEL M. TAYLOR, ) Hon. J. Randall Wyatt, Judge ) Appellant. ) (Second Degree Murder) )

FOR THE APPE LLANT: FOR THE APPELLEE: MONTE D. WATKINS JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter 176 Second Ave. N., Ste. 300 Nashville, TN 37201 LISA A. NAYLOR Counsel for the State 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General LILA STA

TOM Asst. District At torney Ge neral Washington Square, Ste. 500 222 Second Ave. N. Nashville, TN 37201-1649

OPINION FILED:________________ AFFIRMED CURWOOD WITT, JUDGE2 OPINION The defendant, Michael M. Taylor, appeals from the con vict ion of second degree murder he recei ved in the Davidson County Cr iminal Court for the killin g of Tuesdai Hayes. Taylor is presently serv ing a 23-year sentence in the Departmentof Correction. In this di rect appeal, he challenges the sufficiency of the convictingevidence, the court's admission of rebuttal t estim ony of an unsequestered witness , and the length of the sentence imposed . After reviewing the record and the parties' br iefs and having heard oral arguments on the issues , we find no error in the proceedings below and affirm the judgment of the trial court.

Accordin g t o the state's evidence, on December 29, 1995, 21-year-old Tuesdai Hayes w ent to Gladys Baldwi n's house to use Ms. Baldw in's telephone. Ms. Hayes arrived shortly after noon. The defendant, whom Ms. Baldwi n knew as
a neighbor named "Mike-Mike," arriv ed thereafter

and spoke with Ms. Hayes. Ms. Baldwin could no t hear the conversation betwee n the defendant and Ms. Hayes although she observed that its tone sounded friendly. The defe ndant left, and Ms. Baldwin and one of her children went into a bedroom adjoining the living room. The defendant returned and asked Ms. Baldwin, who was still in the bedroom, if he could
use her water to wash h is car. Ms. Baldwin refused. The defendant then turned to Ms. Hayes

and accused her of having s omething to dowith Ms. Baldwi n's refusal to allow him to wash his car. Ms. Hayes responded that the defendant should wash his car at his own home. The defendant told Ms. Hayes to stay out of his business. Ms. Hayes told the defendant he coul d g et his gun and said she had one,too. Three to four seconds later, four to fiv e shots rang out. A ll of the preceding statements and the gunshots were overheard by Ms. Baldwin. After the shots were fired, Tuesdai

Hayes lay

fatally w ounded in a ch air in Ms.Baldwin' s living room.

CharlesBaldwin, who was sixteen years old, had been outside his3

mother's home working on a car with h is uncle, a neighbor and another Baldwin child. Mr. Baldwin had seen the defendant arrive when the defendant first came to t he house. Baldwin left for a time,and after returning he heard s hots and saw
someone drive away w ho looked like the defendant frombehind. This person was wearing the same coat the defend ant had worn earlier that day. Baldwin had not noticed this person arrive;he only saw him leav e. Baldwin knew

the defendant as a neighbor called Mike-Mike.

The Baldwins’ next-door neighbor s aw the defendant, whom she knew from th e neighb orhood, at the Baldwin home tw o times on December 29 prior to hearing the gunshots.

Do ctor Miles Jone

s, a forensic

pathologis

t, testified

that the vi ctim die d from three gunshot wounds to the head and one to thearm. Any one of the three shots to the head was fatal.

L awenforcem ent offic

ers of th e Metro

Police Depart ment tes

tifi ed tha t they found no fingerprint evidence a nd no weapon. However, the eyewitness accounts they receiv

ed linked the defendant and his vehi cle to the crime scene.

The defendant attempted to convince the jury of an alibi defense. The defendant's girlfriend, Keisha Reed, testified that

the defendant wasat her house at the time of the crimes. The defendant ar rived about 12:15 p.m. and did no t leave until 3:00 or 3:15 p.m. Ms. Reed denied knowing that the defendant's nickname is Mike-Mike.

Ms. Reed's father, Larry Reed, testified he came home from work for lunch on December 29 and sa w the defendant with his dau ghter. Mr. Reed4

estimated he normally gets home for l unch be fore 1:00 p.m., although he might have arrived later on D ecember 2 9. The defendant was behaving in his usual
manner.

As rebuttal evidence to th e testimony of Keisha Ree d, the state offered the testimony of Caroly n McElrath, the victi m's cousin. Ms. McElr ath worked with Keisha Reed at

Checkers Restaurant in 1996 and heard Ms. Reedrefer to her boyfriend as Mike-Mike. Ms. McElrath later saw the defendant at the restaurant and asked him if he was Mike- Mike, which he acknow ledged.

Final l y, the defendant offered the surrebuttal testi mony of Keisha Reed, who denied ever working at Checkers.

The defendant had been indicted for first degree murder, and the jury found him gui l ty of the lesser offense of second degr ee murder. He faced a sentence of 15 to 25 years, and the trial c ourt imposed a

23 year sentence. From these determinations, the defenda nt has filed the instant appeal.

I First, the defendant alleges the convicting evidence is ins ufficient to sustain a finding of guilt o f second degree murder. We disagree.

When a defenda nt ch allenges the sufficiency of the evidence, an appellate court’s standard of review is , whether after consideri ng the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the cri me beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13( e). This rule is applic able to findin gs of5

guilt based upon direct evidence,circumstantial evidence, or a combination of direct and c ircum stantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In deter mini ng the sufficiency of the evi dence, this court should not reweigh or reevaluate the evi dence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concer ning the credibility

of the witnesses, the weight and value of the eviden ce, as well as all factual issues rai sed by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidence. Liak as v. Sta te , 199 Tenn. 298, 305, 286 S.W.2d 856,859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this cour

t is required to afford the Stat e of Tennes see the strongest legitimateview of the

evidence contained in the record as well as all rea sonable and legitimate inferences which may be draw n from the evidence. Cabbage , 571 S.W.2d at 835.

Moreover, a criminal offens e may be established exclusiv ely by circumstantial evidence. Duchac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire , 634 S.W.2d 608 (Tenn. Crim. App. 1987). Howev er, befor e an accu sed may

be convicted of

a criminal offense based upon circumstant ial evidence alone, the facts and circumstances

"must be so strong andcogent as to exclude every other reasonable hypothesis save the guilt of the defendant." State v. Crawford , 225 Tenn. 478, 470 S.W.2d 610 (1971); Jones , 901 S.W.2d at 396. In o t her words, "[a] web of guilt must be woven around the defendant from which he cannot esca pe and from which facts and circumstances the jury could draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt." Crawford , 470 S.W.2d at 613;6

State v. McAfee , 737 S.W.2d 304, 30 5 (Tenn. Crim. App. 1987).

T he defen dant attacks the credibili ty of the state's witnes

ses based upon inconsistencies between their trial testimony and pretrial statements an d inconsistencies

between witnesses. Further, the defendant claims the e vid ence fails to exclude the "obvious, r easonable hypothesis" that a black male other than the defendant came into the Baldwin home and shot Ms. Hayes.

We acknowledge that the testimony of some of the state's w itnesses contained inconsistencies. However, it was the duty of the j ury asthe trier of fact to weigh the evidence and pass on the credibility of w itnesses. Unfortunately for the defendant, the jury chose to believe the st ate's wit nesses despite their inconsistencies

over the defense witnesses who had their own credibility problems.
Furthermore, we disagree that the defendant's theory that another blackmale came into t he Baldwin home and shot the victim is an "obvious, reasonable hypothesis." On the facts of this case, it is no more than fantasy. The re was absolutely no evidence of a black male resembling the defendant being inside
or near the Baldwin home. Imm ediately prior to arg uing with and shooting the victim, the defendant asked Ms. Baldwin if he could use her water to wash his car. Ms. Baldwin recogniz

ed the defendant and knew hi s voice. She heard the defendant's voice arguing w ith the victim and the

gunshots that followed. C harles Baldwin recognized the defendant's jacket on the pers on who left the scene after the shots, and the person wear ing that jacket looked

like the defendant

from behind. These facts and circumstances are s trong enough to exclude ever yreasonable hypothesis o the r than the defendant's guilt. Crawford , 225 Tenn. at 482, 470 S.W.2d at 612; Jones , 901 S.W.2d at 396.1 The details of this conversation were actually elicited by the defense

during cross-exami nation of Ms. McElrath. 7 Accordin gly, the evidence is sufficient to support the defen dant's second degree murder conv iction.

II In his second issue, the defenda nt complains about the rebuttal testimony

of Carolyn McElrat h. At trial, the defendant initial ly objected to the testimony

of Ms. McElrath because she had not been sequestered during the state's and defendant's cases-in-chief. The trial court exercised its discretion and a llowed the state to presentrebuttal testimony of Ms. McElrath on the issue of w hether Keisha Reed had referred to the defendant as M ike-Mike. In the mot ion for new trial, the defendant alleged the testimony of Ms. McElrath was admitted "in violation of the sequestration rule." On appe al, however, the defendant co ncedes the trial court was within its discretion in allowing Ms. McElrath to testify about having heard Ms. Reed refer

to her boyfriend as Mike-Mike; however, he alleges the state w ent beyond permissible bound s by elicitin g information about a conversation the witness had with the defendant about his nic kname. 1 Furt her, he al leges the trial court failed to take co rrective action once this testimo ny was elicit ed by giving a curative instruction on the sequest ration rule.

Our review of

the record leads us to conclude that the defendant is not entit led to the rel ief he has requested for two r easons. First, he failed to r egister any objection at tria l to the testimony he now clai ms was erroneously and prejudiciallyadmitted. He also failed to re quest that thetr ial court give the instruction he claims would have cured the alleged error. Moreover, he failed to bring these specific complaints to the trial court's attention in his motion for new trial. These failures constitute a waiver of the issue. Tenn. R. App. P. 3(e ).2 Additionally, the tri al court minimized any arguable prejudice to the defendant by allowing defense counsel time to intervi ew Ms. McElrath before she was called to the stand. 8

Alternat ively, even if the defendant had not waived the issue , we would find no error. Rebuttalevidence is that which tends to explain or controvert evidence produced by an adverse party

. Cozzolino v. St ate , 584 S.W.2d 765, 768 (Tenn. 1979). The decision to admit rebuttal testimony is a matter of discretion for the trial court. State v. B rown , 795 S.W.2d 689, 695 (Tenn. Crim. App. 1990). In conducting appellate review of the trial court's decision, w e will not rever

se it absent
a showing of a clear abuse of discretion. State v. Scott , 735 S.W.2d 825, 82 8 (Tenn. Crim. App. 1987) (citation omitted).

In the case at bar, the defendant offered evi de nc e through the testimony

of Keisha Reed that to her know ledge, the defendant was not known as Mik e-Mike

. The rebuttal testimony of Ms. McElrath was offered to prove that Ms. Reed was aware that the defendant was known as Mike-Mi ke and that the defendant himself acknowledged his nickname. We see no abuse of discretion in the admissi on of this testimo ny. 2 See State v. Anthony , 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992) (sancti on of preven ting the witness from testifying is a harsh one and a less drastic sanction may be appropriat e). Clearly, the evidence offered by the state on rebuttal di rectly controver ted the defendant's evidence.

We disagree with the defendant's co ntent ion that he is entitled to a
new trial based upon the absence of a jury instruction explaining Rule of Evidence 615 and informing the jury that the rebuttal witness's presence in the courtroom prior to her testimony

may be considered in asses sing her testimony. See State v. David P. Hendr ick s , No. 01C01-9407-CR-00255, slip op. at 2 (Tenn. Crim. Ap p., Nashville, Mar. 14, 1995), perm. app. denied (Tenn. 1995). The defense thoroughly9

cross-examinedMs. McElrath about her d egree ofkinshi p to the victim, her presence in the courtroom, and her conv ersations with f

amily me mbers about matters pertaining to the trial . An instruction would have added littl e, if any, further value. The stat

e presented str

ong evi dence of the de fendant's guilt from several individuals. The admission of the rebut tal testi mony aff ected Ms. Reed's cre dibility; however, her credibility had already undergone strenuous a ttack o n crossexamination.

The defendant has failed to demonstrate error relati ve to the rebuttal testimony of Ms. McElra th.

III I n his f inal issue, the defendant attacks the length of his 23-year sentence. In deter mining whether the tri al court has properly sentenced an individual, this court engages in a de novo review of the record with a presumption that the trial court's deter minations were correc

t. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is "conditi oned upon the affirmative showing in the record that the trial court consider ed the sentencing principl es and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting
our de novo review, we mustconsider the evidence at sentencing, the presentence report, the sentencing principles , the arguments of counsel, the statements of the defendant, the nature and characteris tics of the offense, any mitigating and enhancement factors, and the defendant ’s amenability to rehabilitation. Tenn. Code Ann. §§ 40-35-210(b), 40-35-103(5) (1997); Ashby , 823 S.W.2d at 168. On appe al, the appe llant has the burden of showi ng that the sentence imposed is improp er . Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby , 823 S.W.2d at 169.3 Tenn. Code Ann. § 40-35-114(1) (1997).
4 Tenn. Code Ann. § 40-35-114(9) (1997).
5 Tenn. Code Ann. § 40-35-113(6) (1997).
6 Tenn. Code Ann. § 40-35-113(8) (1997).
7 The defendant claims the trial cour t applied only enhancement factor (9). Further, he claims that the trial court found two additional mitigating facto rs, lack of a significant prior cr

iminal history and a sub stantial chance at rehabili tation. The trial court's findings do not bear out the defendant's assertions in this regard. Moreover, the recor d clearly su pports th e trial cou rt's non- applicat ion of th e two additional mitigating factors. This young defendant alr eady had a history of assault and two separate i ncidents of drug possession. Both are serious crimes in the eyes of this court. Further, we see no subs tantial prospect of rehabilitation for this defendant; he is already experienced well beyond his years in the criminal justice sy

stem and was willi ng to take the life of another y oung person over nothing more than water to wash his car. 10 In the case at bar, we find the trial court’s determination is entitled t o the presumption of correctness.

The t rial court enhanced the defendant's senten ce based upon his previousrecord of criminal conduct 3 and his employment of a firearm dur ing the commission of the offense. 4 In mitigation, the trial court found that the defend ant's youth deprived him of substanti al ju dgment in committing the offense 5 and his mental condition significantly reduced his culpabi lity for the offense. 6 7

First, the defendant argues t hat the trial court e rroneously applied nonstatutory enhancement factors. Namely, he alleges the trial cour t en h anced his sentence based upon the senselessness, tr agedy and vi olence of the crime. Further, he argues, the trial co urt ann ou nced its intent not to depreci ate the seriousness of the crime. We interpret the trial court's comments as explicit acknowledgments

of the statutory principl es and considerations of sentencing, not as application of impermissible enhancemen t factors.

In su pport of this argument, the defendant adv ances tha t8 Tenn. Code Ann. § 40-35-113(10) (1997).
9 While a defen dant is constitutional ly pri vileg ed not to

incrim inate hi mself, he is not privileg ed to have his sentence miti gated based upon the exerci se of constitutional rights. 11 consideration of the nature and char acteristics of the offense, Tenn. Code Ann. § 40-35-210(b)(4) (1997 ), in a length-of-sentence determination renders t he mitigatin g and enhancement factors mean in gless in the case of serious felonies because descript ive terms such as senseless, tr agic and vio lent are a lmost alwa ys applicab le. The comments of the trial court i n the case at bar were th at thi s particular

murder, a killing ov

er water to wash a c

ar, was an e sp ecially egregi ous murder. The nature a nd characteristics of the offense ar e relevant to the proper weight to be affor

ded the mi

tigati ng and en hancement factor s in a le ngth-o

fsentence determination; therefore, a tri al court may appropriate ly con sider them. See, e.g. , State v. George E. Martin, Jr. , No. 02C01-9512-CC-00389, slip op. at 14 (Tenn. Crim. App., Jackson, Au g. 18, 1997); State v. Moss , 727 S.W.2d 229, 240 (Tenn. 1986).
Next, the defendant claimsthe trial court also should have mitigated his sentence because he turned himself in to the authorities, 8 even though the defendant did not ask the trial court to apply this mitigating factor at the sentencing hearing. Any error th e trial cou rt may h ave c ommitted in declining to apply this factor is inconsequential becaus e the factor merits

little weight. The evidence of the defendant's a ssis tance to the authorities is minimal. The defen dant apparently surrendered only after his name had been broad cast on television as the suspect. The authoritie

s had already

discover ed the crime

scene and its attendant evidence when the defendant came forward. There is no evidence the defendant gav e a statementwhich assisted the author ities or led them to undisco v ere d evidence. 9 Furthermore, there is some evidence the defendant fled from the neighborhood12

where the cr ime took place when an officer l ooked at him earlier in the d ay. The defendant has failed to demonstrate that factor (10) was entitled to any

significant weight. Cf

. State v. Keel , 882 S.W.2d 410, 422 (Tenn. Crim. App. 1994) ( defendant not entitled to mitigation under factor (9) for assisti ng the authorities in uncov ering offenses committed by other persons where brief statements gi ven by defendant to law enforcement did not

contain new informationand defendant recanted portions of statements during his testimony). But cf

. State v. Gilboy , 857 S.W.2d 884, 889 (Tenn. Crim. App. 1993) (sentence mitigated because de fendant assisted authorities).

Second degree murder is a Class A felony with a sentencing range for Range I offenders of 15 to 25 years. In the absenc e of mitigating and enhancement factors, the presumptive sentence is the midpoint

for a Clas s A felon y. Tenn. Code An n. § 40-35-210(c) (1997). Where mitigating and en hancement factors are present, the trial cour t must be gin at the presump tive sentence, enhance according to the enhancement factors, and then reduce the sentence as appr opriate for the mitigating factors. Se e Tenn. Code Ann. § 40-35-210(e) (1997). W ith these principles

and the applicable mitigati ng and enhancement factors in mind, we find that the eviden ce doe s not overcome the presumptiv e correctness of the 23-year sentence imposed by the tria l court.

Finding no error

in the proceedin gs below, we affirm the judg ment of the trial court.

_______________________________ CURWOOD WITT, JUDGE
CONCUR:13

_____________________________ JOE G. RILEY, JUDGE

_____________________________ R. LEE MOORE, JR., SPEC IAL JUDGE