### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ja nua ry 6, 200 9

STA TE OF TENNES SEE v . TAURUS MER RIWEA THER

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 05-06981 Jame s M. Lamme y, Jr., Judge

No. W2008-00576-C CA-R 3-CD - Filed Jul y 14, 2009

T h e Defenda nt-Appellant, Taurus Merriweathe r (“ Merriweathe r”) , was c onvicted by a Shelby County Crim inal Court jury of sec ond degre e murde r and w as subseque ntly sentence d to twenty-five year s in confinement. Me rriwe ather ’s sole issue on appea l is whether the evidenc e wa s sufficient to establish his identit y as the shooter in this case. Following our review , we a ffirm the judgment of the tr ia l c ou rt

. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

C AM I LLE R. M C M ULLEN , J., delivere d the opi nion of t he court, in which A LA N E. G LE NN a ndJ. C. M C L IN , JJ., joined.

Robert W. Jone s, District Publi c De fende r; Gar land Erg u d en, Assistant Public Defe nder ( on appea l); William Robil io and Ter

ranc e Ta tum, Assist ant Public Def enders (at trial) , Memphis, Tennesse e, for the de fenda nt-appe llant, Taurus Mer riweather.

Rob e rt E. Coo pe r, Jr
., A tt o rn e y G e n e r a l a ndRe po rt e r; Re ne e W . T urne r, As sis ta nt A tto rn e y G e ne ra l; William L. Gi b b o n s, District Attorney Ge nera l; Betsy C arne sale a nd Muriel Malone, A ssistant District Attorneys Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

FACTS AND PROCEDURAL HIST ORY

On Octobe r 4, 2005, Mer riweather wa s indicte d b y t h e Shelby County Grand Jury and char ged with first degr ee mur der. The victim, Syl vester A nderson, wa s shot multiple times and later died af ter be ing transported to the hospital. The jury convicte d Merriweathe r of se cond degr ee murder a nd he wa s later se ntence d to twenty-five ye ars in the Te nnessee Depa rtment of Corre ction.

State’ s Proof

. Vivian C raw ford, the victim’s older sis ter, testified that she witnessed a f ight betwee n Merr iweathe r and the victim outside of a store about a mont h prior to the victim’s death. She observe d Merriweath er retrieve a stick that wa s “made like a bat” from the trunk of his car, approa ch the victim, and swing a t him. C raw ford e xplained that she ye l led to the victim to “look-2-

out” and the vic tim ducke d. Merr iweathe r and the victim then began f ighting unti l someone stopped the fight. After

the fight, Merriweathe r ente red a vehicle with the person who s topped the fight and drove a way. Cra wford sta ted that she did not know why they w ere fighting.

On cr oss-exa mination, Crawford te stified that she had seen Me rriwe ather around the store in the past but did not know his name until her husband told her on the day of the f ight. Crawford stated that she did not hea r wha t was said betwe en the victim and Me rriwe ather while they we re fighting or talk to the victim regar ding t h e fi g ht. She also never called the police re garding the incident. Crawf

ord ac knowledged that the first time that she spoke with a nyone rega rding the fight

was a t the instant trial. Crawf ord could not rec all the type of ve hicle Mer riweather e ntere d afte r the fight, but she was a

ble to reme mber that the ve hicle wa s red.

During re direc t examination, Crawf ord ex p l ai n ed why s he had not told anyone about the fi gh t a t th e sto re be tw e e n M e rriw eat her a ndthe vic tim . Cr a wf or d s ta te d, “ it d idn ’t

c ome to m y mind, and I didn’t t h i n k n o m o re ab o u t it. . . . I thought he had proba bly . . . straightened it up.” When she saw the police at the hospital the night her br other wa s shot, she di d not think to tell them about the pre vious fight at the store at that time. She also stated t hat t he poli ce never questioned her about the shooting.

Ver a Brooks, the victim’s girlfrie nd, testified that the victim was at her apartment located at 377 McLemor e during the la te hours of Ma y 14, 2005, and the ear ly morning hour s of May 15, 2005. While standing on the wa lkway ar ea of the apa rtments, Merriweathe r, a person whom Brooks knew

a s “ T- Ma c ,” wa lke d u p to the vic tim wi th a ba se ba ll b a t a nda sk e d th e vic tim fo r s e ve n d oll ars

. Brooks intervene d and told Merr iweathe r, “I paid you that seve n dolla rs , ” and Me rriwe ather responde d, “I didn’t ge t it.” Brooks then told the victim to go inside the a partment. Brooks stated that the vi c ti m w e n t i n s id e a n d lo c k e d th e d o o r

. A p p r o x im a te ly te n to f if te e n mi n u te s late r , the victim s tated that he w as going bac k outside because he w as not afr aid. While the vic tim was standing outside, Brooks noticed “a littl e gray car ” in the ar ea w hich she ha d rec ognize d as being associate d with Merriwe ather . After Brooks noticed t h e g ra y ca r, she notice d that her ne ighbor’s outside light, which was about two apartment door s down from Brooks’ a partment, wa s not on. She stated that the light was on befor e the gra y car arrived in the ar ea. Brooks the n hear d a voice stating, “now, what [are ] you going to do[?] ” The sound of a gunshot t h en fo l l o wed. Brooks stated, that afte r the victim turned to ente r t he apa rtment, Merriweathe r shot the victim a sec ond time. The victim then collapsed in fr ont of the apartment door. As Merriweathe r wa s walking away from the

sc e ne , M e rriw e a the r sh ot the vic tim a thi rd tim e

. Br oo ks state d that the on ly thin g th e vic tim sa id afte r he w as s h ot was, “ba by, it hurts.” Brooks was only able to de scribe the gun used by Merriweathe r to shoot the victim as being silver and “ kind of big.” Late r, Brooks gave a stateme nt to t h e p o l i ce and identified Merriwe ather in a photographic line-up as the pe rson who shot the victim. Brooks also identified Merriwe ather as the pe rpetrator at trial.

Aa ro n Aus tin testified that he was inside Brooks’ a partment at the time of the shooting. Austin stated that he hea

rd t hree gunshots while he was lying in bed wa tching television. He then

ra n o u ts id e a n d f

o u n d th e v ic ti m ly in g o n th e g r o u n d s tati n g , “ H e s h o t me

. H e shot me. He shot me.” Prior to the shooting, Austin hear d Merriweathe r and the victim arguing, but he did not know wh a t th e arg ume nt w a s a

bo ut. He knew that Merriweathe r and the victim we re the individuals who-3-

wer e ar guing because he looke d out the window and observe d them. Austin also noticed that Merriweathe r had an object in his hand that rese mbled a bat. On cross-examination, Austin testified that he hea

rd the gunshots within a co u p l e o f m inutes of looking out the window and obser ving Merriweathe r and the victim a rguing. On redire ct examination, Austin stated that he did not know what the a

rgument wa s about, but he did hea r someone say the word “ money.”

Langdon Hubbe rt, a pa trol office r with the Memphis Police Depa rtment, t es t i fi ed t hat at approximate ly 12:00 a.m. on May 15, 2005, he re sponded to a homicide c all at 377 East McLe more. When he a n d h i s p artne r ar rived a t the scene , they found the vic tim lyi ng on the ground, a nd gr abb ing his c he st. Of

fi c e r H ub be rt

a sk e d th e vic tim

if he kn e w w ho ha d sho t hi m. Th e vic tim stated that “T- Mac” h ad s h o t him. Office r Hubbe rt testified that the victim had be en shot in the chest, his right wrist, and his right ankle. Brooks a lso informed Off icer Hubbert that “T-Ma c” w as the per son who shot the victim. Offic er Hubbert st ated that Brooks identified “T- Mac” as Taur us Merriweathe r.
Chastity R agland, a nother pa trol office r with the Memphis Police Depa rtment, testified that she also responde d to the shooting c all at 377 East McLemor e. Offic er Ragl an d ’s t es t i mony describing the scene was substantially the same a s Offic er H ubbert’s te stimony, except she wa s unable to obtain a statement from the victim a s to who shot him. Officer Ragland stated that Brooks
t o l d h er that Merriweathe r wa s the person w ho shot her boyfriend. Off icer Ragland knew Me rriw e a the r b y th e na me of “ T- Ma c ” fr om a

pr ior e nc ou nte r w ith him

.

Li e ute na nt M ark

Re wa lt, fo rm e rl y a

se rgea nt with the ho mic ide bu re a u o f the Me mph is Police Depa

rtment, testified that Brooks was shown a photogra phic line-up to identify the shooter

. He state d that Brooks immediately identified Merriweathe r as the pe rson who shot her boyfriend. On cr oss-exa mination, Lieutenant R ew al t acknow ledged that Brooks wa s the only person who positively identified Merriwe ather as the shooter

. Sergea nt Ant hony Mullins, t he homicide c ase c oordinator with the Me mphis P olice Depa rtment, testified that in his effor ts to locate Mer

riweather he lear n ed t h at Merriweathe r wa s schedule d to appea

r in court the next day, May 16, 2005. He state d that he sent two investigators
to court to locate Merriwe ather
, but Merriweathe r never appear ed. Merriweathe r wa s later a rre sted afte r he turne d himself in t o the fugitive off ice on June 5, 2005. On cr oss-exa mination, Sergeant Mullins t estified that he was una war e of a ny dying declar ation made by the vic tim indi cating that Me rriw e a the r w a s th e pe rs on wh o sho t him. He state d tha t he wo uld ha ve pu t th a t in fo rm a tio n in the a ff ida vit of c omp la int

fo r M e rriw e a the r’ s a

rr e st w arr a nt.

Dr. Ka ren Chanc ellor, chie f medica l examiner for Shelby C ounty, testified t hat s he did not pe rf or m th e a uto ps y o f the vic tim
, bu t sh e re vie we d th e re po rt . D r. Cha nc e llo r s ta te d th a t th e vic tim had a gunshot entra nce wound to his chest and a exit wound to his back whic h damage d his lungs and a ma jor blood vessel. Ther e we re a lso gunshot wound injuries behind the victim’s left knee , on his right wrist, and on his right foot. The wound behind the le ft knee fra cture d the tibia and dama ged a major blood ve ssel. Dr. Chanc ellor stated that the w ounds to the victim’s chest and lef t knee

wo uldha ve re su lte d in the vic tim ’s de a th d ue to e xte ns ive blo odlos s.-4-

Demar Wells, a crime scene investigator with the M emphis Police Depa rtment, testified that he took photographs of

the crime scene and collec ted evidenc e. Of fice r We lls c o l l ected bloody wh ite tow e ls, a

blo od y soc k, a blo od y re d t-s hirt, a wh ite blo od y je rs e y, a blo od y b ull e t f

ra gme nt, two spent nine m illim eter luger c asings, a blue he ad ra g, a pair of gre en jogging pants, a pa ir of blac k jogging pants with white stripes, and a pa ir of blac k tennis shoes.

Def ense’s Pr oof. Merriweathe r testified that he was not known a s and had ne ver be en ref err ed to as “ T-Mac ”, but some people did refe r to him a s “Red” or “Slim.” H e stated tha t around eight or nine o’cloc k in the evening on Saturda y, May 14, 2005, his fathe r drove him to his cousin’s house. Mer

riweather e xplained that his ca r had be en impounded by the polic e afte r he ha d been

arr e ste d f or dr ivi ng un de r the inf

lue nc e . W hil e a t hi s c ou sin ’s ho us e , h e “ po pp [e d] a c ou ple of pil ls, . . . smok[ed] some w eed,” “dra nk,” and t h en “pa ssed out” about f ifteen or twenty minutes later. He state d
, “T h e n ex t t hing I kn[e] w, I [w oke] ba ck up at home w ith my girlfriend,” on Sunday

m o rn i n g around nine or ten o’c lock. He le arne d of the victim’s death from his girlfriend. Merriweathe r stated that he lived on McLemor e in 2003 or 2004 and tha t he knew Brooks, A ustin, and the victim as “just neighbors downstairs.” Merriweathe r st ated that he did not borrow or loan any money to the victim. He acknow ledged that in May of 2005 his ha ir was long, but he cut it after he ha d tu rn e d h ims e lf

in t o p oli c e be c a us e he didno t ha ve a ny bo dy to b ra id h is h air whi le in ja il. He le arn e d that he wa s wa nte d fo r mur de r on Ma y 16
, 20 05
, bu t he didno t c a ll the po lic e be c a us e he wa s “in a pa nic.” On c ross-exa mination, Merriwe ather testified that on M ay 16, 2005, he did not appea r in court r egar ding his arre st for driving under the influenc e bec ause he forgot about the hearing. He also stated that he did not go to work on that day be cause he wa s “too messed up.”

Geor ge Carr

testified that he lived in the sa me apartment building as Brooks and was four apartment doors down from he r uni t. Carr state d that around dusk on Ma y 14, 2005, he and his wife

wer e sitting on their porch when they observe d a man with a baseba ll bat “beating” on Brooks’ door. Carr de sc ri be d th e ma n a s f ive fe e t si x in c he s to fi ve fe e t se ve n in c he s ta ll, we igh ing abo ut 1 15 to 125 pounds. The man a lso had long drea dlocks and “ rea l dark” skin, but Carr did not rec all what the man wa s wea

ring. Carr stated that the m an walked t hrough an alley when no one answ ere d the door. Carr then went inside his apartment to go to the bathroom. When he returne d outside, Carr’ s wife informed h i m t h at t h e v ictim had been shot. From the time Carr saw the ma n with a bat knocking on Brooks’ door until the time Carr w ent to the bathroom, about four to five minutes had passed. Anothe r three to four minutes had pa ssed from the time he enter ed the bathroom until the time his wife informed him of the shooting. Carr stated that he was acqua inted with Merriwe ather through Merriweathe r’s mother a nd that Merri we at h er was not the pe rson he sa w knocking on Brooks’ door with a ba seball bat. Car r s t at ed t hat Merriweathe r had short hair and tha t Me rriw e a the r’ s h a ir

ha d b e e n a

bo ut the sa me le ng th s inc e he ha s k no wn him

.

On cr oss-ex am i n at i on, Carr te stified that he saw a per son whom he had ne ver se en bef ore running toward Simpson Street while he w as re turning to his porch. Carr sta ted that he was frie nds with Merriwe ather ’s m other because his dece ased wife wa s good friends with her . Carr’ s wife a nd Merriweathe r’s mother ha d been e mployed by the same e mployer.

Teid re Sugars, Merriweathe r’s sister, testified that she lived with Merriwe ather
, Merriweathe r’s girlf

ri en d
, and Mer

riweather’s thre e childre n. She stated that Mer riweather wa s-5-

lying on the couch whe n she ar rived home a

round 11:09 p.m. or 1 1 : 1 9 p

. m . Merriweathe r’s girlfriend info rm ed h er that he was dr unk and had be en “thr owing up.” Sugars then w ent to her room. Around nine or ten o’c lock the next morning, Sugars sa w Merriweathe r on the c ouch whe re she saw him the night bef ore.

Bill Pounders, employed with Shelby County Central Information Tec hnology, testified that he maintains data for the jail ma nageme nt c omputer system. When an inmate is proc essed in the jail, information rega

rding alternative names or a liases are obt ained from the i nmate and enter ed on his or her “ R & I number” tha t is specifica lly assign ed t o the inmate. Pounders state d that he

re se arc he d th e ja il d a ta

ba se fo r i nmate s w ith a n ali as by the na me of “ T- Ma c ” a ndre tr ie ve d s ix

rec ords with varia tions of the name “ T-Mac .” Mer riweather’s “ R & I number” did not m atch a ny of the re cords that ha d the name “ T-Mac ” or a varia tion of the name a s an alias.

State’ s Rebu ttal Pr oof. Sergea nt Mulli ns testified that while sea rching “ Visions,” the databa se sy s t em wh er e o ff en s e r ep o rt s ar e e n t er ed
, h e f o u n d M er ri we at h er ’s n am e a n d ad d re s s which included the al i as “T -M ac.” Se rg e a nt M ull ins a c kn ow le dg e d th a t he c ou ld n ot d e te rm ine the da te when the alias was enter ed into “ Visions.” He stated that Merriweathe r wa s not associated w ith the

a lia s “ T- Ma c ” in the ja il m a na ge me nt d a ta ba se sy ste m.

AN AL YSI S

Merr iweathe r ar gues that the e vidence was insuffic ient for the ju ry t o find him guilt y of

se c on d d e gr e e mur de r b e yo nda re a so na ble do ub t. S pe c if

ic a lly , h e c on te nd s th a t th e pro of of his ide nti ty a s th e sh oo te r w a s insu ff ic ie nt b e c a us e Ve ra

Br oo ks a ndAa

ro n A us tin we re the on ly witnesses that plac ed him at t h e scene of the shooting. Further, Mer riweather c ontends that the victim d id n o t s p e c if

ic a ll y n a me M e rr iw e a th e r a s th e s h o o te r w h e n th e v ic ti m s a id
, “ H e shot me. He shot me. He shot me .” The State a rgues that the pr oof establishing Merriweathe r as the shoote r was suff icient to support the conviction for second de gree murder.

When a def

endant c hallen ges t h e sufficie ncy of the c onvicting e vidence , the standar d of revie w is “whe ther, a fter vie wing the evidenc e in the light most favor able to the pr osecution, any

ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble doubt.” J ackson v. Virg inia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979); see also Tenn. R. App. P. 13(e) ( 2006) (“ Finding s of g uilt in criminal actions whether by the trial cour t or jury shall be set aside if the e vidence is insufficient to support the finding by the trier of

fac t of g uilt bey ond a

rea sonable doubt.”) . This standard a pplies to con v i ct i o ns based upon dire ct, circ umstantial, or a combination of both direc t and circ umstantial evidence . State v. Penderg rass, 13 S.W .3d 389, 392- 93 (Tenn. Crim. App. 1999)

. On appe al the State, on appea l, is entitled to the strong est leg itimate view of the e vidence and

a ll l e g iti mate or

re a so na ble inf e re nc e s wh ic h ma

y be dr awn fr om t hat e vid e nc e . St a te v. Carr uth e rs , 35 S.W .3d 516, 558 (Tenn. 2000). All que stions involving the cre dibilit y of witnesses, the w eig ht

and va lue to b e g ive n th e e vid e nc e , a nd a ll factu al iss ue s a

re re so lve d b y

the tr ie r o f f

a c t, a nd thi s court will not re- weig h or re-eva luate the evidenc e. State v. Sutton, 166 S .W.3d 686, 689-90 (Tenn.-6-

2005). The Tenne ssee Supreme Court ha s stated that “[a] guilty verdic t by

the jury , approve d by

the trial court, acc redits the testimony of the witnesse s for the State a nd resolves a ll conflicts in favor of the prosec ution’s theory .” State v. B land, 958 S.W.2d 651, 659 (Tenn. 1997) (c itation omit ted). A g uilty verdic t also “re moves the presumption of i nnocenc e and repla ces it with a pre sumption of g uilt, and the defe ndant has the bur den of illust ratingwhy the evidenc e is insufficient to support the jury ’s ver dict.” I d. (citation omitted).

Merr iweathe r wa s convicted of second degre e murde r. Tenne ssee Code A nnotated sec tion 39-13-210 (a)( 1) defines second degree murder as “a know ing killi ng of anothe r.” I n addition to the elements of se cond degr ee mur der, the identity of the perpe trator, an essential element of any crime, must also be proven be yond a re asonable doubt. State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). Issues r egar ding identity are que stions of fact de termined by the jury. State v. Vaughn, 29 S.W .3 d 3 3, 40 (T e nn . Crim . App . 199 8)

. Con fl ic ts in witn e sse s’ te sti mon y re ga rd ing the ide nti ty of the a ccuse d and the we ight given to those witnesses are is sues resolved by the j ury as the finder of fa ct. State v. Ander son, 880 S.W.2d 720, 726 (Tenn. Crim. App. 1994).

Her e, we conclude the evidenc e wa s su ff i ci en t to establish Merriwe ather ’s identity as the shooter in this case. E ven though Merriweathe r conte nds that the victim did not spe cifica lly identify him as the shooter, the vic tim named “T-Ma c” a s the person w ho shot him. T-Mac was e stablished

a t trial a s a n a lia s a sso c ia te d w ith Me rriw e a the r i mme diate ly a ft e r the sh oo tin g w he n h e sp ok e to Offic er H ubbert. Ve ra Brooks, the vic tim’s girl fr i end, testified that she was pre sent at the sce ne when the vic tim was shot. Brooks identified Merriwe ather in a photographic line-up and at trial as the per son who shot the victim multiples times in front of her apartment unit. Furthermore , Aar on Austin heard a nd observe d an ar gument betwee n Merriweathe r and the victim immediately prior to hearing gunshots. Although Merriweathe r prese nted evidenc e of an alibi thr ough his own testimony and the testimony of Te idre Sugars, the jury chose to r ejec t the m ( citing State v. Crawf ord, 635 S.W. 2d 704, 705 (Tenn. Crim. App. 1982) ). Mer riweather a lso presente d testimony of G eorge Carr, the neighbor who testified that he saw someone other than Merriweathe r running fr om the scene at the time of the shooting; however , the jury ac cre dited the t estimony of the State’s w itnesses identifying Me rriw e a the r a s th e sh oo te r. As pr e vio us ly m e nti on e d, thi s cou rt do e s not re -w e igh or re -e va luate the evidenc e. Sutton, 166 S.W .3d at 689-90. Vi e wi ng the e vid e nc e in the lig ht m os t f a vo ra ble to the State, the evidenc e was more than sufficie nt to allow the jury to f ind tha t Me rriwe ather

was the perpe trator who committed the crime of sec ond degre e murde r. Ac cordingly, Mer riweather is not entitled to relief.

CO NC LU SION

Based upon the f

oregoing re view, we aff

irm the judgment of the trial c ourt.

______________________________ CAMILLE R. McMULLEN , JUDGE