State v. Malone

• Decision Date: 24 February 2022
• Docket Number: W2020-00364-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. MARCUS MALONE
• Court: Tennessee Court of Criminal Appeals

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STATE OF TENNESSEE
v.
MARCUS MALONE

No. W2020-00364-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Jackson

February 24, 2022

Session August 3, 2021

Appeal from the Criminal Court for Shelby County No. 17-03640 W. Mark Ward, Judge

The Defendant, Marcus Malone, appeals as of right from his convictions for second degree murder, attempted first degree murder, five counts of attempted second degree murder, twelve counts of aggravated assault, six counts of employing a firearm during the commission of a dangerous felony, and reckless endangerment with a deadly weapon, for which the trial court imposed an effective sentence of one hundred thirty-three years. The Defendant contends that (1) the trial court erred by denying the Defendant's motion to suppress his police statement; (2) the trial court erred by failing to inquire into the Defendant's request for substitute counsel; (3) the trial court erred by instructing the jury on criminal responsibility and by failing to instruct the jury on facilitation or self-defense; (4) the evidence was insufficient to establish his identity as the shooter; (5) his sentence is excessive; (6) the trial court erred by imposing partial consecutive service; and (7) his aggregate sentence is unconstitutional in light of his status as a juvenile at the time of the offenses. After a thorough review of the record and applicable law, we affirm.

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

Michael E. Scholl (on appeal), Memphis, Tennessee; Phyllis L. Aluko, District Public Defender; and Elbert E. Edwards, III, Mary Kathryn Kent, Ben Rush, Jr., and Laurie S. Sansbury (at trial), Assistant District Public Defenders, for the appellant, Marcus Malone.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Austin B. Scofield and Carla L. Taylor, Assistant District Attorneys General, for the appellee, State of Tennessee.

D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and Timothy L. Easter, J., joined.

OPINION

D. KELLY THOMAS, JR., JUDGE

FACTUAL BACKGROUND

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This case arises from a November 1, 2016 shooting at Zodiac Park in Memphis, in which sixteen-year-old Alana Tello^[1] was killed, eighteen-year-old Matthew Turner was shot and paralyzed, and Taylor Bumpous, Summer Jones, Elizabeth Clasen, and Lindsey Trentham were injured.^[2] The Defendant was seventeen years old at the time of the incident.

The July 2017 term of the Shelby County Grand Jury subsequently issued an indictment charging the Defendant as follows:

Count 1	Charge	Victim	Felony Class
Second degree murder	Alana Tello	A
2	Attempted first degree murder	Matthew Turner	A
3	Attempted second degree murder	Taylor Bumpous	B
4	Attempted second degree murder	Summer Jones	B
5	Attempted second degree murder	Elizabeth Clasen	B
6	Attempted second degree murder	Lindsey Trentham	B
7	Attempted second degree murder	Taylor Stull	B
8	Attempted second degree murder	Victoria Cottam	B
9	Attempted second degree murder	Anna Rutherford	B
10	Attempted second degree murder	Anna Farris	B
11	Attempted second degree murder	Andrew Skyler King	B

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12	Attempted second degree murder	Magdalena Cornett	B
13	Attempted second degree murder	Alivia Richardson	B
14	Aggravated assault with a deadly weapon causing bodily injury	Matthew Turner	C
15	Aggravated assault with a deadly weapon causing bodily injury	Taylor Bumpous	C
16	Aggravated assault with a deadly weapon causing bodily injury	Summer Jones	C
17	Aggravated assault with a deadly weapon causing bodily injury	Elizabeth Clasen	C
18	Aggravated assault with a deadly weapon causing bodily injury	Lindsey Trentham	C
19	Aggravated assault with a deadly weapon causing fear of bodily injury	Taylor Stull	C
20	Aggravated assault with a deadly weapon causing fear of bodily injury	Victoria Cottam	C
21	Aggravated assault with a deadly weapon causing fear of bodily injury	Anna Rutherford	C
22	Aggravated assault with a deadly weapon causing fear of bodily injury	Anna Farris	C
23	Aggravated assault with a deadly weapon causing fear of bodily injury	Andrew Skyler King	C
24	Aggravated assault with a deadly weapon causing fear of bodily injury	Magdalena Cornett	C
25	Aggravated assault with a deadly weapon causing fear of bodily injury	Alivia Richardson	C
26	Employing a firearm during the commission of a dangerous felony, attempted first degree murder	Matthew Turner	C
27	Employing a firearm during the commission of a dangerous felony, attempted second degree murder	Taylor Bumpous	C
28	Employing a firearm during the commission of a dangerous felony, attempted second degree murder	Summer Jones	C
29	Employing a firearm during the commission of a dangerous felony, attempted second degree murder	Elizabeth Clasen	C

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30	Employing a firearm during the commission of a dangerous felony, attempted second degree murder	Lindsey Trentham	C
31	Employing a firearm during the commission of a dangerous felony, attempted second degree murder	Taylor Stull	C
32	Employing a firearm during the commission of a dangerous felony, attempted second degree murder	Victoria Cottam	C
33	Employing a firearm during the commission of a dangerous felony, attempted second degree murder	Anna Rutherford	C
34	Employing a firearm during the commission of a dangerous felony, attempted second degree murder	Anna Farris	C
35	Employing a firearm during the commission of a dangerous felony, attempted second degree murder	Andrew Skyler King	C
36	Employing a firearm during the commission of a dangerous felony, attempted second degree murder	Magdalena Cornett	C
37	Employing a firearm during the commission of a dangerous felony, attempted second degree murder	Alivia Richardson	C
38	Reckless endangerment	Matthew Turner, Taylor Bumpous, Summer Jones, Elizabeth Clasen, Lindsey Trentham, Taylor Stull, Victoria Cottam, Anna Rutherford, Anna Farris, Andrew Skyler King, Magdalena Cornett, Alivia Richardson	C

See Tenn. Code Ann. §§ 39-12-101; -13-102, -103, -210; -17-1324.

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I. Background/Contextual Information

At trial, all of the living victims named in the indictment testified. In addition, the Defendant's accomplices, Jakayle Daniels, Tyler Johnson, and Deric Lucas testified. The Defendant did not testify, but his police statement was introduced and read into evidence by Memphis Police Department (MPD) Sergeant Fausto Frias.

The trial testimony established that on October 31, 2016, Alivia Richardson hosted a Halloween party, which Kirsten Roger^[3] attended with her boyfriend, Mr. Daniels, Ms. Roger's friend, Shelby Perser, and Mr. Daniels's friend, Mr. Johnson. Ms. Richardson and her friends disliked Ms. Perser and asked her to leave. Ms. Perser refused, and a fight broke out. By some accounts, Ms. Roger took Ms. Richardson's cell phone, and some witnesses noted that Ms. Roger or Mr. Daniels inadvertently punched Anna Rutherford, who was not involved in the initial fighting. Ms. Rutherford testified that Ms. Roger knocked her out and that Summer Jones, Ms. Rutherford's then-girlfriend, was angry. Ms. Roger, Ms. Perser, Mr. Johnson, and Mr. Daniels eventually left the party.

The following day, a video of the fight was posted on Facebook. Ms. Jones testified that Ms. Roger posted a comment to the video that Ms. Roger "beat all of [them] up"; however, Ms. Rutherford testified that Ms. Roger commented that "she got beat up by a bunch of lesbians[.]" In any event, Ms. Jones and Ms. Roger exchanged insults in text messages and calls, and eventually Mr. Daniels began communicating with Ms. Jones on Ms. Roger's behalf. Ms. Jones challenged Ms. Roger to a fight, and Mr. Daniels suggested they meet at Zodiac Park at about 7:30 p.m.

The testimony and exhibits reflected that Zodiac Park consisted of a long, curved parking lot surrounded by trees; a playground was accessible through one of the wooded areas in the park. The park was adjacent to a neighborhood.

The testimony regarding the shooting will be described below in detail; however, it was undisputed that Ms. Tello was killed when a bullet struck the back of her neck, traveling through her cervical spine, spinal cord, larynx, and esophagus before exiting the front right side of her neck. Mr. Turner was shot in the face and neck and in the back, resulting in permanent paralysis from the chest down. Taylor Bumpous, Ms. Jones, Elizabeth Clasen, and Lindsey Trentham also suffered gunshot wounds.^[4]

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Ms. Jones called Matthew Turner and asked him to attend the fight, given that Mr. Daniels would be there. Mr. Turner was with Andrew Skyler King when he...