                                                   FILED
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE
                                                  September 29, 1998
                           JUNE 1998 SESSION
                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )
            Appellee,               )    C.C.A. No. 01C01-9708-CR-00367
                                    )
vs.                                 )    Davidson County
                                    )
MICHAEL M. TAYLOR,                  )    Hon. J. Randall Wyatt, Judge
                                    )
            Appellant.              )    (Second Degree Murder)
                                    )




FOR THE APPELLANT:                       FOR THE APPELLEE:

MONTE D. WATKINS                         JOHN KNOX WALKUP
Attorney at Law                          Attorney General & Reporter
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 STATOM
                                         Asst. District Attorney General
                                         Washington Square, Ste. 500
                                         222 Second Ave. N.
                                         Nashville, TN 37201-1649




OPINION FILED:________________

AFFIRMED

CURWOOD WITT, JUDGE
                                     OPINION

              The defendant, Michael M. Taylor, appeals from the conviction of

second degree murder he received in the Davidson County Criminal Court for the

killing of Tuesdai Hayes. Taylor is presently serving a 23-year sentence in the

Department of Correction. In this direct appeal, he challenges the sufficiency of the

convicting evidence, the court's admission of rebuttal testimony of an

unsequestered witness, and the length of the sentence imposed. After reviewing

the record and the parties' briefs and having heard oral arguments on the issues,

we find no error in the proceedings below and affirm the judgment of the trial court.



              According to the state's evidence, on December 29, 1995, 21-year-old

Tuesdai Hayes went to Gladys Baldwin's house to use Ms. Baldwin's telephone.

Ms. Hayes arrived shortly after noon. The defendant, whom Ms. Baldwin knew as

a neighbor named "Mike-Mike," arrived thereafter and spoke with Ms. Hayes. Ms.

Baldwin could not hear the conversation between the defendant and Ms. Hayes

although she observed that its tone sounded friendly. The defendant 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 his car. Ms. Baldwin refused. The defendant then turned to

Ms. Hayes and accused her of having something to do with Ms. Baldwin'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 could get his gun and said she had one, too.

Three to four seconds later, four to five shots rang out. All of the preceding

statements and the gunshots were overheard by Ms. Baldwin. After the shots were

fired, Tuesdai Hayes lay fatally wounded in a chair in Ms. Baldwin's living room.



              Charles Baldwin, who was sixteen years old, had been outside his

                                         2
mother's home working on a car with his uncle, a neighbor and another Baldwin

child. Mr. Baldwin had seen the defendant arrive when the defendant first came to

the house. Baldwin left for a time, and after returning he heard shots and saw

someone drive away who looked like the defendant from behind. This person was

wearing the same coat the defendant had worn earlier that day. Baldwin had not

noticed this person arrive; he only saw him leave. Baldwin knew the defendant as

a neighbor called Mike-Mike.



             The Baldwins’ next-door neighbor saw the defendant, whom she knew

from the neighborhood, at the Baldwin home two times on December 29 prior to

hearing the gunshots.



             Doctor Miles Jones, a forensic pathologist, testified that the victim died

from three gunshot wounds to the head and one to the arm. Any one of the three

shots to the head was fatal.



             Law enforcement officers of the Metro Police Department testified that

they found no fingerprint evidence and no weapon. However, the eyewitness

accounts they received linked the defendant and his vehicle 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 was at her house

at the time of the crimes. The defendant arrived about 12:15 p.m. and did not 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 saw the defendant with his daughter. Mr. Reed

                                         3
estimated he normally gets home for lunch before 1:00 p.m., although he might

have arrived later on December 29. The defendant was behaving in his usual

manner.



              As rebuttal evidence to the testimony of Keisha Reed, the state

offered the testimony of Carolyn McElrath, the victim's cousin. Ms. McElrath worked

with Keisha Reed at Checkers Restaurant in 1996 and heard Ms. Reed refer 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 acknowledged.



              Finally, the defendant offered the surrebuttal testimony of Keisha

Reed, who denied ever working at Checkers.



              The defendant had been indicted for first degree murder, and the jury

found him guilty of the lesser offense of second degree murder. He faced a

sentence of 15 to 25 years, and the trial court imposed a 23 year sentence. From

these determinations, the defendant has filed the instant appeal.



                                           I

              First, the defendant alleges the convicting evidence is insufficient to

sustain a finding of guilt of second degree murder. We disagree.



              When a defendant challenges the sufficiency of the evidence, an

appellate court’s standard of review is, whether after considering the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime 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 applicable to findings of

                                           4
guilt based upon direct evidence, circumstantial evidence, or a combination of direct

and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim.

App. 1990).



              In determining the sufficiency of the evidence, this court should not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the

evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the

trier of fact from the evidence. Liakas v. State, 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 court is required to afford the State of Tennessee the strongest

legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. Cabbage, 571

S.W.2d at 835.



              Moreover, a criminal offense may be established exclusively 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). However, before an accused may be convicted of a

criminal offense based upon circumstantial evidence alone, the facts and

circumstances "must be so strong and cogent 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 other words, "[a] web of guilt

must be woven around the defendant from which he cannot escape 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;

                                         5
State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).



              The defendant attacks the credibility of the state's witnesses based

upon inconsistencies between their trial testimony and pretrial statements and

inconsistencies between witnesses. Further, the defendant claims the evidence

fails to exclude the "obvious, reasonable 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 witnesses

contained inconsistencies. However, it was the duty of the jury as the trier of fact

to weigh the evidence and pass on the credibility of witnesses. Unfortunately for the

defendant, the jury chose to believe the state's witnesses despite their

inconsistencies over the defense witnesses who had their own credibility problems.



              Furthermore, we disagree that the defendant's theory that another

black male came into the Baldwin home and shot the victim is an "obvious,

reasonable hypothesis." On the facts of this case, it is no more than fantasy. There

was absolutely no evidence of a black male resembling the defendant being inside

or near the Baldwin home. Immediately prior to arguing with and shooting the

victim, the defendant asked Ms. Baldwin if he could use her water to wash his car.

Ms. Baldwin recognized the defendant and knew his voice.            She heard the

defendant's voice arguing with the victim and the gunshots that followed. Charles

Baldwin recognized the defendant's jacket on the person who left the scene after

the shots, and the person wearing that jacket looked like the defendant from behind.

These facts and circumstances are strong enough to exclude every reasonable

hypothesis other than the defendant's guilt. Crawford, 225 Tenn. at 482, 470

S.W.2d at 612; Jones, 901 S.W.2d at 396.




                                         6
               Accordingly, the evidence is sufficient to support the defendant's

second degree murder conviction.



                                            II

               In his second issue, the defendant complains about the rebuttal

testimony of Carolyn McElrath. At trial, the defendant initially 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 allowed

the state to present rebuttal testimony of Ms. McElrath on the issue of whether

Keisha Reed had referred to the defendant as Mike-Mike. In the motion for new

trial, the defendant alleged the testimony of Ms. McElrath was admitted "in violation

of the sequestration rule." On appeal, however, the defendant concedes 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 went

beyond permissible bounds by eliciting information about a conversation the witness

had with the defendant about his nickname.1 Further, he alleges the trial court

failed to take corrective action once this testimony was elicited by giving a curative

instruction on the sequestration rule.



               Our review of the record leads us to conclude that the defendant is not

entitled to the relief he has requested for two reasons. First, he failed to register

any objection at trial to the testimony he now claims was erroneously and

prejudicially admitted.    He also failed to request that the trial 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).


       1
       The details of this conversation were actually elicited by the defense
during cross-examination of Ms. McElrath.

                                            7
              Alternatively, even if the defendant had not waived the issue, we

would find no error. Rebuttal evidence is that which tends to explain or controvert

evidence produced by an adverse party. Cozzolino v. State, 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. Brown, 795 S.W.2d 689, 695 (Tenn. Crim. App. 1990). In

conducting appellate review of the trial court's decision, we will not reverse it absent

a showing of a clear abuse of discretion. State v. Scott, 735 S.W.2d 825, 828

(Tenn. Crim. App. 1987) (citation omitted).



              In the case at bar, the defendant offered evidence through the

testimony of Keisha Reed that to her knowledge, the defendant was not known as

Mike-Mike. The rebuttal testimony of Ms. McElrath was offered to prove that Ms.

Reed was aware that the defendant was known as Mike-Mike and that the

defendant himself acknowledged his nickname. We see no abuse of discretion in

the admission of this testimony.2 See State v. Anthony, 836 S.W.2d 600, 605

(Tenn. Crim. App. 1992) (sanction of preventing the witness from testifying is a

harsh one and a less drastic sanction may be appropriate). Clearly, the evidence

offered by the state on rebuttal directly controverted the defendant's evidence.



              We disagree with the defendant's contention 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 assessing her testimony. See State v.

David P. Hendricks, No. 01C01-9407-CR-00255, slip op. at 2 (Tenn. Crim. App.,

Nashville, Mar. 14, 1995), perm. app. denied (Tenn. 1995). The defense thoroughly



       2
       Additionally, the trial court minimized any arguable prejudice to the
defendant by allowing defense counsel time to interview Ms. McElrath before she
was called to the stand.

                                           8
cross-examined Ms. McElrath about her degree of kinship to the victim, her

presence in the courtroom, and her conversations with family members about

matters pertaining to the trial. An instruction would have added little, if any, further

value. The state presented strong evidence of the defendant's guilt from several

individuals. The admission of the rebuttal testimony affected Ms. Reed's credibility;

however, her credibility had already undergone strenuous attack on cross-

examination.



               The defendant has failed to demonstrate error relative to the rebuttal

testimony of Ms. McElrath.



                                          III

               In his final issue, the defendant attacks the length of his 23-year

sentence.    In determining whether the trial 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 determinations were correct. Tenn. Code Ann. § 40-35-401(d)

(1997). This presumption is "conditioned upon the affirmative showing in the record

that the trial court considered the sentencing principles and all relevant facts and

circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting

our de novo review, we must consider the evidence at sentencing, the presentence

report, the sentencing principles, the arguments of counsel, the statements of the

defendant, the nature and characteristics 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 appeal,

the appellant has the burden of showing that the sentence imposed is improper.

Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby,

823 S.W.2d at 169.



                                           9
                In the case at bar, we find the trial court’s determination is entitled to

the presumption of correctness.



                The trial court enhanced the defendant's sentence based upon his

previous record of criminal conduct 3 and his employment of a firearm during the

commission of the offense.4 In mitigation, the trial court found that the defendant's

youth deprived him of substantial judgment in committing the offense 5 and his

mental condition significantly reduced his culpability for the offense.6 7



                First, the defendant argues that the trial court erroneously applied non-

statutory enhancement factors. Namely, he alleges the trial court enhanced his

sentence based upon the senselessness, tragedy and violence of the crime.

Further, he argues, the trial court announced its intent not to depreciate the

seriousness of the crime. We interpret the trial court's comments as explicit

acknowledgments of the statutory principles and considerations of sentencing, not

as application of impermissible enhancement factors.



                In support of this argument, the defendant advances that


       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 court applied only enhancement factor (9).
Further, he claims that the trial court found two additional mitigating factors, lack
of a significant prior criminal history and a substantial chance at rehabilitation.
The trial court's findings do not bear out the defendant's assertions in this regard.
Moreover, the record clearly supports the trial court's non-application of the two
additional mitigating factors. This young defendant already had a history of
assault and two separate incidents of drug possession. Both are serious crimes
in the eyes of this court. Further, we see no substantial prospect of rehabilitation
for this defendant; he is already experienced well beyond his years in the
criminal justice system and was willing to take the life of another young person
over nothing more than water to wash his car.

                                            10
consideration of the nature and characteristics of the offense, Tenn. Code Ann. §

40-35-210(b)(4) (1997), in a length-of-sentence determination renders the mitigating

and enhancement factors meaningless in the case of serious felonies because

descriptive terms such as senseless, tragic and violent are almost always

applicable. The comments of the trial court in the case at bar were that this

particular murder, a killing over water to wash a car, was an especially egregious

murder. The nature and characteristics of the offense are relevant to the proper

weight to be afforded the mitigating and enhancement factors in a length-of-

sentence determination; therefore, a trial court may appropriately consider them.

See, e.g., State v. George E. Martin, Jr., No. 02C01-9512-CC-00389, slip op. at 14

(Tenn. Crim. App., Jackson, Aug. 18, 1997); State v. Moss, 727 S.W.2d 229, 240

(Tenn. 1986).



                Next, the defendant claims the 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 the trial court may have committed in declining to apply this

factor is inconsequential because the factor merits little weight. The evidence of the

defendant's assistance to the authorities is minimal. The defendant apparently

surrendered only after his name had been broadcast on television as the suspect.

The authorities had already discovered the crime scene and its attendant evidence

when the defendant came forward. There is no evidence the defendant gave a

statement which assisted the authorities or led them to undiscovered evidence.9

Furthermore, there is some evidence the defendant fled from the neighborhood



       8
           Tenn. Code Ann. § 40-35-113(10) (1997).
       9
        While a defendant is constitutionally privileged not to incriminate himself,
he is not privileged to have his sentence mitigated based upon the exercise of
constitutional rights.

                                          11
where the crime took place when an officer looked at him earlier in the day. 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 assisting the authorities in uncovering

offenses committed by other persons where brief statements given by defendant to

law enforcement did not contain new information and 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 defendant 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 absence of mitigating and enhancement

factors, the presumptive sentence is the midpoint for a Class A felony. Tenn. Code

Ann. § 40-35-210(c) (1997). Where mitigating and enhancement factors are

present, the trial court must begin at the presumptive sentence, enhance according

to the enhancement factors, and then reduce the sentence as appropriate for the

mitigating factors. See Tenn. Code Ann. § 40-35-210(e) (1997). W ith these

principles and the applicable mitigating and enhancement factors in mind, we find

that the evidence does not overcome the presumptive correctness of the 23-year

sentence imposed by the trial court.



                Finding no error in the proceedings below, we affirm the judgment of

the trial court.



                                           _______________________________
                                           CURWOOD WITT, JUDGE


CONCUR:




                                          12
_____________________________
JOE G. RILEY, JUDGE



_____________________________
R. LEE MOORE, JR., SPECIAL JUDGE




                                13
