State v. Moreno

• Decision Date: 24 October 2022
• Docket Number: M2020-01090-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. MICHAEL LEE ARTHUR MORENO
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v. MICHAEL LEE ARTHUR MORENO

No. M2020-01090-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Nashville

October 24, 2022

Session August 10, 2022

Appeal from the Criminal Court for Davidson County No. 2016-D-2183 Cheryl A. Blackburn, Judge

The Defendant, Michael Lee Arthur Moreno, was convicted by a Davidson County Criminal Court jury of attempted voluntary manslaughter, a Class D felony; reckless endangerment, a Class A misdemeanor; and employing a firearm during the commission of a dangerous felony, a Class C felony, and was sentenced by the trial court to an effective term of eight years in the Department of Correction. He raises the following three issues on appeal: (1) whether the evidence is sufficient to sustain his convictions; (2) whether the trial court abused its discretion under Tennessee Rule of Evidence 404 and Tennessee Code Annotated section 24-7-125 by restricting cross-examination of one of the victims about text messages the victim sent the night before the shooting expressing the victim's desire to commit a robbery; and (3) whether the trial court erred under Tennessee Rule of Evidence 613 by allowing the State to introduce rebuttal evidence of a defense witness's recorded statement to police. Based on our review, we conclude that the evidence is sufficient to sustain the convictions, that the trial court did not err in restricting cross-examination of the victim and that the Defendant, who failed to raise a contemporaneous objection at trial, cannot show plain error in the introduction of the defense witness's statement. Accordingly, we affirm the judgments of the trial court.

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

Manuel B. Russ, Nashville, Tennessee (on appeal), and Sais Phillips Finney, Courtney Teasley, and John Morris, Memphis, Tennessee (at trial), for the appellant, Michael Lee Arthur Moreno.

Herbert H. Slatery III, Attorney General and Reporter; Richard D. Douglas, Senior Assistant Attorney General; Glenn R. Nash, District Attorney General; and Doug Thurman and Bryon Pugh, Assistant District Attorneys General, for the appellee, State of Tennessee.

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR. and JILL BARTEE AYERS, JJ., joined.

OPINION

JOHN W. CAMPBELL, SR., JUDGE

FACTS

This case arises out of the Defendant's shooting and seriously injuring two men in a parking lot near a Nashville Taco Bell restaurant. On July 25, 2016, Adriana Fuentes, a woman with whom the Defendant had been romantically involved, enlisted the aid of a new boyfriend, Gregory Bailey, in an attempt to extort money from the Defendant. Ms. Fuentes' scheme involved having Mr. Bailey pretend that he was holding her against her will, beating and raping her, and threatening her further physical harm because of a debt she allegedly owed him. In furtherance of that scheme, Ms. Fuentes first had Mr Bailey come to a McDonald's restaurant where Mr. Bailey, feigning anger in front of the Defendant, ordered Ms. Fuentes into his vehicle and then drove off with her in his car. Later that same day, Ms. Fuentes repeatedly texted the Defendant to tell him that she was being raped and beaten and to ask him to meet her and Mr. Bailey with cash in order to secure her release. At approximately 11:00 that same night, Mr. Bailey, Ms. Fuentes, and Mr. Bailey's friend and co-worker, Eaven Rankens, arrived at the meeting location, saw the Defendant parked nearby, and pulled in beside the Defendant. Within seconds, the Defendant fired five shotgun rounds into Mr. Bailey's vehicle, striking and injuring all three occupants. The Defendant took Ms. Fuentes to the hospital after the shooting and was arrested early the next morning following a traffic stop on Interstate 65.

On November 7, 2016, the Davidson County Grand Jury returned a four-count indictment that charged the Defendant in count one with the attempted first degree premeditated murder resulting in serious bodily injury of Mr. Bailey, in count two with the attempted first degree premeditated murder resulting in serious bodily injury of Mr. Rankins, in count three with employing a firearm during the commission or attempt to commit the dangerous felony referenced in count one, and in count four with employing a firearm during the commission of or attempt to commit the dangerous felony referenced in count two. The Defendant was also apparently charged in a second indictment with reckless endangerment with a deadly weapon, but the charge was later nolle prosequied. The judgment for that count is included in the record on appeal, and lists the count as count three. The indictment for that count is not included in the record.

State's Proof

At trial, Gregory Bailey testified that on the afternoon of July 25, 2016, he picked up Mr. Rankins and went to a music studio in Antioch, where the two men "h[u]ng out" writing recording, playing and listening to music. At some point, he received a phone call from Ms. Fuentes, whom he had been dating casually for approximately one month. Ms. Fuentes told him that she was at the McDonald's at the intersection of Nolensville and Bell Roads (the Nolensville Road McDonald's), that some man was "messing with her[,]" and that she needed Mr. Bailey to come get her. Mr. Bailey stated that Ms. Fuentes instructed him to "act . . . mean and tough and hard and tell her that . . . she owed [him] money[.]" Ms. Fuentes also instructed him to tell the man that Ms. Fuentes would be leaving the restaurant with Mr. Bailey.

Mr. Bailey testified that he followed Ms. Fuentes' instructions. Leaving Mr. Rankins behind at the music studio, he arrived at the Nolensville Road McDonald's at approximately 5:00 p.m. to find Ms. Fuentes walking out of the restaurant followed by a man that he did not know, but whom he later learned was the Defendant. According to Mr. Bailey, he walked up to Ms. Fuentes and, acting angry, repeatedly ordered her to get into his car. He then aggressively asked the Defendant, "[H]ey, do you got a problem?" The Defendant did not reply, and Mr. Bailey got into his vehicle with Ms. Fuentes and left. Mr. Bailey testified that he was unaware of Ms. Fuentes' romantic relationship with the Defendant. Ms. Fuentes told him only that the Defendant was a man "she use[d] to get some money out of sometimes[.]"

Mr. Bailey testified that he took Ms. Fuentes with him to the music studio, where he continued to hang out with Mr. Rankins and others for the next few hours. He did not pay attention to what Ms. Fuentes was doing during that time. The studio eventually closed and he, Mr. Rankins, and Ms. Fuentes left together in his vehicle. As they were leaving, Ms. Fuentes told him that she had to get some money out of the Defendant. Ms. Fuentes then called the Defendant and said, "[H]ey, they're gonna hurt me, they are gonna do this if you don't give me the money[.]" When she hung up, he asked her what it was about. She then called the Defendant back, handed the phone to Mr. Bailey, and had him tell the Defendant to give Ms. Fuentes the money. Mr. Bailey stated that he did not know at that time of the other conversations that Ms. Fuentes had had with the Defendant that afternoon and evening. He knew only that Ms. Fuentes was in the habit of using the Defendant to get money, so when she handed him the telephone, he went along with her scheme:

[A]nd so later on when she told me that, hey, I think I can just get some money out of him, you know what I'm saying, well, you know, like use him. I just use him for my phone bills, use him to do this. I think I can get some money out of him, so when she did that after she told me, you know what I'm saying, she was just like here just, you know, tell him, so she just handed me the phone like, like in the car, I was driving I believe on the way and she handed the phone and she was like just tell him.

I was like just like give her the money, give her the money, give her the money and then she got on there and then later on is when I found out all of the extra stuff that was said and had gone on.

Mr. Bailey testified that he never saw Ms. Fuentes' text messages and never heard her tell the Defendant that she had a "busted lip" or that she was hurt. All he heard her say was that they were going to hurt her if she did not get the money. He did not even know to whom she was talking until she told him that it was the man from the Nolensville Road McDonald's. It was not until later that he learned that she had told the Defendant that he and Mr. Rankins had kidnapped and beaten her. Mr. Bailey denied that he or Mr. Rankins struck Ms. Fuentes, kidnapped her, or threatened to hurt her. He said that none of them had a gun that night and that he never told the Defendant that he had a weapon.

Mr. Bailey testified that Ms. Fuentes directed him to the McDonald's on Bell Road near Interstate 24 ("the Bell Road McDonald's), telling him that she had arranged to meet the Defendant there. He drove to that location and parked his vehicle and the three of them waited for approximately twenty or thirty minutes, but the Defendant did not show up. During the time that they waited, Ms. Fuentes and Mr. Rankins were standing outside his vehicle "on the phone" and "smoking cigarettes[.]" He finally asked Ms. Fuentes if they could leave, and she told him that they were at the wrong McDonald's and needed to go to the one on Nolensville Road instead. She and Mr. Rankins then got back in his vehicle, with Ms. Fuentes occupying the backseat and Mr. Rankins as his front seat passenger.

Mr Bailey testified that he missed the entrance to the Nolensville Road McDonald's and turned into the next entrance that led to Taco Bell. As he did so, Ms....