State v. Bishop

• Decision Date: 14 March 2012
• Docket Number: No. W2010-01207-CCA-R3-CD,W2010-01207-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. COURTNEY BISHOP
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v. COURTNEY BISHOP

No. W2010-01207-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

Filed March 14, 2012

Assigned on Briefs October 4, 2011

Appeal from the Criminal Court for Shelby County

No. 08-07886 James M. Lammey, Jr., Judge

The defendant, Courtney Bishop, appeals his Shelby County Criminal Court jury convictions for felony murder and attempted aggravated robbery, challenging the sufficiency of the convicting evidence and the trial court's refusal to suppress his pretrial statement to police. Because the trial court erred by failing to suppress the defendant's statement, the defendant is entitled to a new trial. Because the evidence was insufficient to support the defendant's convictions for attempted aggravated robbery and first degree murder in the perpetration of attempted aggravated robbery, those convictions are reversed. The conviction for attempted aggravated robbery is dismissed. The conviction for first degree murder is modified to one for second degree murder. Accordingly, the case is remanded for a new trial on the modified charge of second degree murder.

Tenn. R. App. P. 3; Judgments of the Criminal Court Reversed and Dismissed in

Part; Reversed and Modified in Part; Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which NORMA MCGEE OGLE and ALAN E. GLENN, JJ., joined.

R. Todd Mosley (on appeal); and Robert Parris (at trial), Memphis, Tennessee, for the appellant, Courtney Bishop.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Kevin Rardin and Stacy McEndree, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The defendant's convictions relate to the shooting death of the victim, MauriceTaylor, Jr., on August 19, 2008. At trial, the victim's brother, Mareo Taylor, testified that at the time of the victim's death, the two men lived at 1548 Cella Street. Mr. Taylor was working as an automotive manager at Walmart, and the victim had recently been discharged from the military. The victim worked part-time in the family's concession business but was unable to make ends meet. As a result of his financial difficulties, the victim turned to selling marijuana.

At approximately 9:30 p.m. on August 19, 2008, Marlon McKay, a childhood friend whom Mr. Taylor had not seen in several years, came to the residence to speak with the victim. Mr. Taylor said that Mr. McKay tried to sell some marijuana to the victim, but the victim refused to buy it because of the low quality of the marijuana. Following the victim's refusal, Mr. McKay left. Sometime later, the victim got a telephone call. Without saying anything to Mr. Taylor, the victim walked out the side door of the residence. Mr. Taylor heard the victim say "Mareo" followed by a gunshot. Mr. Taylor said that he grabbed his bat and walked to the side door. Outside, he saw the victim "staggering." By the time Mr. Taylor dropped the bat and walked outside, the victim had fallen to the ground. Mr. Taylor said that he couldn't see any blood, but the victim "was just gargling like bubbles." At that point, Mr. Taylor began administering CPR and asked his girlfriend to call 9-1-1. Police arrived six or seven minutes later.

Several neighbors testified that they observed a light-colored, two-door Mercury Cougar circling the block near the victim's house just before the shooting. Others reported seeing two black males flee the scene in the same car minutes later. None positively identified either man.

Memphis Police Department ("MPD") Officer Lesley Jones testified that he and four other officers were the first officers to arrive on the scene, and he took over CPR from Mr. Taylor's girlfriend. They continued to perform CPR until the fire department arrived even though, in his opinion, the victim was already dead. Officers performed a basic search but discovered no weapons or money in the area near the victim.

Susan Acerra, a death investigator with the Shelby County Medical Examiner's Office, responded to the scene after being paged by MPD. She photographed the scene and conducted a brief examination of the victim's body, observing a single gunshot wound to his chest. Ms. Acerra inventoried the victim's personal belongings, which included a cellular telephone, a tube of chap stick, a lighter, and $1,163.75 in cash.

Shelby County Medical Examiner Marco Ross testified that the victim suffered a single gunshot wound that entered "the left side of the front of the chest," "perforated the left sixth costal sternal junction," and then traveled through the heart, the diaphragm, theliver, and the right lung before coming to rest inside his lower right flank. Toxicology testing revealed the presence of marijuana and codeine in the victim's blood.

Tracy Taylor testified that at the time of the murder, she was living with Mr. McKay, who supported himself by dealing drugs and, as a result, often carried a gun. On August 19, 2008, Mr. McKay left in her 1997 Mercury Cougar at 8:30 p.m. She knew the defendant as an associate of Mr. McKay but did not know whether he accompanied Mr. McKay on August 19, 2008.

After initially denying any involvement in the victim's murder, the defendant eventually admitted his role to MPD Lieutenant Eddie Bass on August 23, 2008, telling Lieutenant Bass that "he didn't mean to do what he had done." The defendant then described "in[] detail" the scheme that Mr. McKay devised "to go and rob the victim." Mr. McKay drove them in Mr. McKay's girlfriend's Mercury Cougar to the victim's residence "to rob him for his money." The defendant told officers that Mr. McKay provided him with "[a] chrome forty-four revolver" and lured the victim out of his house by telling him that they wanted to buy marijuana from him. The defendant described the encounter that followed: "I was standing on the side of his car, I pulled a gun out, and he seen to me - he seen to me pull it out, and he tusslin' with me. He made my finger slip and pull the trigger making the gun go off, and we ran to the car, and I gave the gun back to Marlon." The defendant said that they did not take anything from the victim.

MPD Lieutenant Bart Ragland testified that on August 27, 2008, officers searched the area where they believed the defendant discarded the gun but found nothing. They later discovered the weapon outside an Applebee's restaurant "stuck down in the bushes in a purple Crown Royal bag." He described the weapon as a "Taurus forty-four magnum, five-shot revolver."

Tennessee Bureau of Investigation Forensic Scientist Cervinia Braswell testified that the bullet taken from the victim's body was fired from the weapon recovered by Lieutenant Ragland. Agent Braswell noted that the weapon contained an internal safety mechanism to prevent accidental firing. She explained:

The transfer bar is that piece of metal that sits in between the hammer and the firing pin. When the gun is at rest, there is a gap between the hammer . . . and the firing pin. . . . I can hit it back here all day, and it's not going to go off. That piece of metal has to move up in between the hammer and the firing pin for the gun to fire.

The way that does that is when the hammer is cocked back, that piece of metal moves upwards. . . . And a feature of this safety is if I were to hit that trigger - not pull it, just knock it, the hammer would fall, but that transfer bar would fall out of the way and would keep the gun from firing. So, if I accidentally hit the trigger, the gun is not going to fire.

She said that the safety features were working on the gun at the time of her testing. The weapon "in single action" took four pounds of pressure to fire and "[i]n double action" took 12 pounds and 7/8 of an ounce. The amount of pressure to fire the gun in single action was approximately the same as that to squeeze the trigger "on a Windex bottle."

Following Agent Braswell's testimony, the State rested, and the defendant took the stand on his own behalf.

The defendant admitted that he accompanied Mr. McKay to rob the victim and that he killed the victim but claimed that he did not mean to do so. He explained that Mr. McKay, ten years his senior, came to him on August 19, 2008, and told him that he had "a little lick" for him. The defendant agreed to go, explaining, "He was telling me that [the victim] was soft, everybody had been taking from him, so it would be sweet - everybody take, so I'm thinkin' we gonna just strong-arm take his money." The defendant claimed that he "didn't really want to" participate in the robbery but did so only because Mr. McKay "was just bugging" him about it. He said he felt threatened at the time because Mr. McKay had the gun in his lap.

The pair drove the silver Mercury Cougar to Cella Street, circled the block several times, and then parked the car near an abandoned house located across the street from the victim's residence. They went inside the house, where Mr. McKay "put on his bandana and gloves and handed [the defendant] a gun." The defendant testified that Mr. McKay claimed the gun was "for safety" and assured him that they were going "to strong arm." Mr. McKay then told the defendant to "go on" and that he would follow in "a split second." The defendant said that he was "in fear" as he walked toward the victim's darkened yard, saying that he was "fixin' to walk off" when the victim came out of the house. He claimed that he would have continued to walk away, but the victim "stepped up" to him and grabbed him. He said that when he "yanked away" from the victim, his "finger slipped on the trigger and shot him."

After the gun went off, the defendant ran back to the car, and Mr. McKay drove off. He said that Mr. McKay complained because they hadn't gotten any money from the victim. Mr. McKay let him out of the car, and he went home. He said that he gave the gunto Mr. McKay. Following the shooting, Mr. McKay visited him...