        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs July 13, 2010

                 STATE OF TENNESSEE v. DEVARON TAYLOR

               Direct Appeal from the Criminal Court for Shelby County
                     No. 08-01054   James M. Lammey, Jr., Judge




              No. W2009-01252-CCA-R3-CD - Filed September 12, 2011


Defendant, Devaron Taylor, was indicted by the Shelby County Grand Jury for two counts
of felony murder and one count each of aggravated burglary and attempt to commit especially
aggravated robbery. Prior to trial, one count of felony murder was dismissed on motion of
the State. Following a jury trial, Defendant was convicted of felony murder, attempt to
commit especially aggravated robbery, and aggravated burglary. Defendant was sentenced
to life imprisonment for his felony murder conviction and concurrent sentences of eight years
for attempted robbery and three years for aggravated burglary for an effective sentence of life
imprisonment. In this appeal, Defendant raises the following issues for our review: 1)
whether the trial court erred by refusing to grant a mistrial after a juror was dismissed for
sleeping; 2) whether the trial court erred by failing to restrict the State’s use of a hypothetical
fact pattern during voir dire and by limiting Defendant’s voir dire. After a thorough review,
we affirm the judgments of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Taylor Eskridge and Larry Copeland, Memphis, Tennessee, for the appellant, Devaron
Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; William L. Gibbons, District Attorney General; Ray Lapone, Assistant District
Attorney General; and Collin Campbell, Assistant District Attorney General, for the appellee,
the State of Tennessee.
                                         OPINION

                                            Facts

        On September 25, 2007, shortly after 5:00 p.m., Barbara Mathis was at her home
when someone told her that the victim, Maurice Pegues, an elderly man who lived down the
street from her, might be dead. She went to Mr. Pegues’ house and saw him lying on the
ground. Ms. Mathis testified that the victim appeared to still be breathing and was holding
his side. She saw latex gloves and keys on the ground beside him, and his pants pocket was
inside out.

        Jason Berry, a Memphis Fire Department paramedic, responded to a call to the
victim’s home. When he arrived, he saw the victim lying on his left side in the grass beside
the house. The victim had two gunshot wounds, and he was deceased. Mr. Berry testified
that he arrived on the scene at 5:39 p.m., and he estimated that the victim had died two hours
prior to him arriving.

       Memphis Police Department Officer Richard Simes responded to a call to the victim’s
residence. When he arrived at around 5:30 p.m., he found the victim deceased, lying in the
front yard. He observed a broken window at the back of the house. Officer Simes did not
find any fired ammunition near the victim’s body.

        Officer Marlon Wright responded to the scene between 6:00 and 7:00 p.m. The victim
had been shot and was dead upon Officer Wright’s arrival. He testified that the victim had
been lying on top of a pair of latex gloves. Believing that the gloves were left behind by the
paramedics, they were folded up inside a sheet used to cover the victim’s body and thrown
in a trash can behind the victim’s house. The gloves were later recovered as evidence by
Sergeant Anthony Mullins.

        On the day after the shooting, Officer James Max of the Memphis Police Department
recovered from inside the victim’s home a work glove that was lying on the victim’s bed, a
piece of duct tape that was stuck to the dresser, a magazine, and an extension cord, all of
which he sent to the lab for fingerprinting. Donald Carpenter processed those items for
fingerprints, and he was able to lift a ridge detail from the roll of duct tape only. Carpenter
also examined other items recovered from inside the house and around the victim’s house,
including a garbage can, the window glass, a wooden board, and one of the latex gloves
found under the victim’s body, but he was unable to find fingerprint ridge details on any of
those items. Larry Preston, a latent print examiner, compared the fingerprint lifted from the
roll of duct tape with Defendant’s fingerprint and concluded the prints matched identically.



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       Qadriyyah Debenam, a forensic scientist for the TBI, analyzed several items of
evidence submitted by the police department, including fingernail scrapings taken from the
victim, a blood sample taken from the victim, the latex gloves, and the victim’s pants and
belt. She was unable to obtain a DNA profile sufficient for testing from the latex gloves.
She compared the DNA taken from the other items submitted to the Defendant’s DNA
profile and concluded that there was no match.

        William Milam was interviewed by police as a possible suspect in this case. He
testified that he lived one street away from the victim and that he was Defendant’s best
friend. He knew Mr. Pegues as “the old man in the neighborhood.” He testified that he and
others would do chores for Mr. Pegues and that Mr. Pegues would “help [them] out.” Milam
gave two statements to the police. In one of those statements, Milam stated that Defendant
told him he and Alvin Gordon had killed the victim. On the day of the shooting, Defendant
went to Milam’s house around 3 or 4:00 in the afternoon. Defendant told Milam that Alvin
Gordon had shot the victim. Defendant asked Milam to move a rifle and a shotgun for him.
Milam found the guns where Defendant told him he had left them and put them in a garbage
can in front of an address on the same road where he lived. Sergeant Bart Ragland recovered
a 12-gauge shotgun and .22 caliber rifle from a garbage can at the same address.

        Sergeant Joe Stark interviewed Defendant on September 26, 2007. Defendant and his
mother went to the police department voluntarily, and they both signed a waiver of rights
form. Defendant initially denied any involvement. Defendant then told detectives that he
had heard the gunshot but was not present at the shooting. Finally, Defendant told detectives
that he was with Alvin Gordon when Gordon shot the victim. In his statement, Defendant
told police that Gordon had asked him if he wanted to “get the old man,” to which Defendant
responded that he “didn’t care.” Together they went to the victim’s house, where Gordon
removed the glass from a window in the rear of the house, and they both entered the house.
They found a 12-gauge shotgun and shells. Defendant stated that Gordon found some duct
tape and suggested they tie up the victim when he came home. When the victim arrived
home, he came around to the back window, and Gordon pulled out a .38 caliber handgun and
shot the victim. Defendant took the shotgun and ran away. Before running away, he saw
Gordon go over to the victim and take something black out of his pocket. He threw the
shotgun into the bushes. Defendant stated that the original plan was to wait for the victim
to return home and that they had intended to take his car.

       Defendant testified that on September 25, 2007, he woke up around 11 or 12:00 and
walked to Magnolia, the area in which the victim lived. Alvin Gordon called him and asked,
“Do you want to get the old man’s car?” Defendant replied that he “didn’t care.” Defendant
walked to Gordon’s house, and together they walked to William (“Eddie”) Milam’s house,
but no one answered the door at Milam’s house. Defendant and Gordon then walked to the

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victim’s house. Defendant testified that Gordon used a screwdriver to “pop” the window out
and used a trash can to step up and go inside through the window. Gordon looked around
inside and told Defendant that no one was there, and Defendant went inside. Inside the
victim’s house, they found a 12-gauge shotgun. Defendant testified that Gordon handed him
the shotgun, he handed it back, and Gordon put the shotgun down on the bed beside the
window. Gordon also found some 12-gauge shotgun shells, which he also placed on the bed.

       Defendant testified that he searched the house, looking for the victim’s car keys.
Defendant found latex gloves in the bathroom and he put them on so as not to leave
fingerprints, and he and Gordon continued to look for the car keys. They did not find any car
keys, and Defendant looked through the victim’s dresser. He testified that Gordon appeared
with duct tape and asked if he wanted to “tie [the victim] up.” Defendant told Gordon, “No,
we just came to get the keys to the car.” Defendant took the duct tape from Gordon and
placed it on the dresser. Defendant told him that he thought “things [were] getting out of
hand.” Defendant took off the gloves and began to leave. Gordon told Defendant to wait,
and Defendant went back to the front of the house to wait. Then, they saw the victim
returning home. Defendant testified that the victim came to the back of the house where
Defendant and Gordon were standing and pulled back the curtain. The victim called Gordon
by name, and Gordon pushed Defendant aside, pulled out a gun and shot the victim.
Defendant grabbed the shotgun and they both jumped out of the window and ran. As they
ran away from the victim’s house, Defendant saw Gordon reach down and take something
from the victim’s pocket. Defendant threw the shotgun into the bushes. They then walked
to William Milam’s house. Defendant later told Milam to get the shotgun out of the bushes.

       Defendant admitted that he went to the victim’s house to steal his car and that they
waited on the victim to arrive home. Defendant and Gordon stole $9.50 in quarters from the
victim. Defendant heard the victim gagging as he ran away from the home. Defendant
explained how he believed that the latex gloves he was wearing were found lying under the
victim’s body. He testified that he had taken the gloves off, and the victim took them from
him when he was standing at the window before he was shot. On direct examination,
Defendant denied knowing in advance that Gordon had a gun with him that day, but he later
admitted on cross examination that he did, in fact, know that Gordon possessed a gun.

                                           Analysis

       Defendant first contends that the trial court erred by not granting a mistrial after the
court dismissed one of the original jurors for sleeping. The State responds that Defendant
has waived this issue by failing to object or request a mistrial at the time of the court’s
removal of the juror.



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       During the State’s case-in-chief, defense counsel brought to the court’s attention
during a sidebar that one of the jurors had been sleeping during the witnesses’ testimony.
The trial court suggested to the jury at the end of that day’s proceedings that they all “get a
good night’s sleep.” The following day, during a recess, the trial court again noted the
sleeping juror and proposed that he be dismissed and replaced by an alternate juror. Defense
counsel noted that the juror was distracting to the other jurors, and both attorneys agreed to
dismiss that juror.

        The State argues that this issue is waived and should therefore be subject only to a
plain error analysis. When a defendant fails to make a contemporaneous objection and fails
to raise an issue in his motion for new trial, the issue is waived and may only be reviewed in
accordance with the plain error doctrine. State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000).
Appellate relief is generally not available when a party has “failed to take whatever action
was reasonably available to prevent or nullify the harmful effect of an error.” Tenn. R. App.
P. 36(a). Defense counsel did not object to the replacement of the sleeping juror at trial, nor
did he request a mistrial. In fact, defense counsel acquiesced to the trial court’s action to
replace the juror. Despite the fact that Defendant raised this issue in his amended motion for
new trial, it is waived due to the fact that Defendant acquiesced in the procedure and thus
obviously failed to object and to ask for a mistrial. Even if not waived, the issue is without
merit.

       Once a jury is impaneled, jurors may be discharged from further service prior to
deliberations only if found by the trial court to be “unable or disqualified to perform their
duties.” Tenn. R. Crim. P. 24(f); see Tenn. Code Ann. § 22-5-312. The decision to
discharge a juror and to select an alternate juror is left to the discretion of the trial judge.
State v. Millbrooks, 819 S.W.2d 441, 445 (Tenn. Crim. App. 1991).

       Defendant urges this Court to follow the reasoning in State v. Cleveland, 959 S.W.2d
548 (Tenn. 1997) and State v. Chestnut, 643 S.W.2d 343 (Tenn. Crim. App. 1982). In
Cleveland, the Tennessee Supreme Court found plain error where the trial court replaced a
missing juror with an alternate juror, and when the missing juror later appeared during
closing argument, the trial court replaced the alternate juror with the original missing juror.
Cleveland, 959 S.W.2d at 550. Finding that “the error so fundamentally prejudice[d] the
judicial process,” the Court declined to review the issue for harmless error and reversed the
defendant’s conviction. Id. at 552. The supreme court distinguished that case from the facts
of Chestnut, in which this court found no prejudice to the defendant where a juror had been
sleeping and missed five minutes of testimony. Id. In Chestnut, defense counsel did not
request that the sleeping juror be replaced with an alternate, but rather moved for a mistrial.
Chestnut, 643 S.W.2d at 346. This court considered the length and nature of the testimony
missed by the sleeping juror, noting that the juror missed only five minutes of testimony in

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a three-day trial and that the testimony “was, by its very nature, quite dull.” Id. at 347.

       Unlike both Cleveland and Chestnut, in the present case the deliberating jury did not
include a juror who missed any portion of the proceedings. The sleeping juror was replaced
by an alternate who was present for all of the proceedings. Defendant is not entitled to relief
on this issue.

       In his next issue, Defendant contends that the trial court failed to restrict the State’s
use of hypothetical questions during voir dire and that the trial court improperly limited
defense counsel’s voir dire. Defendant asserts that the trial court abused its discretion by
allowing the State to use fact patterns similar to the facts in the present case to “solicit[ ] a
promise from the jury in violation of Tennessee law.” Defendant further asserts that he was
prejudiced when the trial court restricted his questioning of the jurors regarding the natural
and probable consequences rule.

        “The ultimate goal of voir dire is to [e]nsure that jurors are competent, unbiased, and
impartial. . . .” State v. Cazes, 875 S.W.2d 253, 262 (Tenn. 1994). The appellate courts in
this State have determined that it is improper to ask prospective jurors hypothetical questions
that seek to commit the jurors to a specific course of action. Solomon v. State, 489 S.W.2d
547, 550 (Tenn. Crim. App. 1972). The trial court has wide latitude in conducting the
examination of prospective jurors, and its decision will not be disturbed unless there is an
abuse of the court’s discretion. State v. Irick, 762 S.W.2d 121, 125 (Tenn. 1988); State v.
Black, 618 S.W.2d 526, 527 (Tenn. Crim. App. 1981).

        During voir dire, the State posed a hypothetical to the prospective jurors in which four
individuals, a driver, a planner, a lookout, and a gunman, rob a bank. The prosecutor asked
the jurors whether they believed that the driver, the planner, and the lookout could be found
guilty of the aggravated robbery under the theory of criminal responsibility for the acts of the
gunman. The prosecutor then asked whether those individuals could be found guilty of
murder if the gunman killed someone in the course of the robbery. The prosecutor asked
prospective jurors whether they understood the law and whether they felt comfortable
following the law as explained to them by the trial judge.

        Our review of the record shows that the State did not, in posing its hypothetical to the
jury, ask for a commitment from the prospective jurors. We therefore conclude that the trial
court did not abuse its discretion.

      Lastly, Defendant asserts that the trial court improperly limited his voir dire of the
prospective jurors. Using the State’s bank robbery example, defense counsel asked
prospective jurors whether any of the other three individuals besides the gunman would have

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been guilty by the natural and probable consequences of the gunman’s actions if the other
three did not know that the gunman had a gun. The State objected. During a bench
conference, defense counsel argued that the rule was an element of criminal responsibility
that the State was required to prove, and the State argued that the rule of natural and probable
consequences does not apply to felony murder, and therefore, defense counsel had misstated
the law to the jury. The trial court agreed with the State, finding that defense counsel’s use
of the natural and probable consequences rule in the hypothetical was misleading to the jury.
Following the bench trial, the trial court properly instructed the jury on the elements of felony
murder.

        This court, in State v. Winters, 137 S.W.3d 641, 659 (Tenn. Crim. App. 2003),
explained that “the felony murder statute . . . does not require that a homicide committed
during the course of one of the enumerated felonies be foreseeable.” In other words,
“‘[w]hen one enters into a scheme with another to commit one of the felonies enumerated
in the felony murder statutes, and death ensues, both defendants are responsible for the death
regardless of who actually committed the murder and whether the killing was specifically
contemplated by the other.’” Id. (quoting State v. Hinton, 42 S.W.3d 113, 119 (Tenn. Crim.
App. 2000)).

       We conclude that the trial court did not abuse its discretion by limiting defense
counsel’s voir dire. The trial court instructed the jury as to the natural and probable
consequences rule as an element of criminal responsibility. However, in the context of
felony murder, the trial court was correct in limiting defense counsel’s voir dire so as not to
confuse the jury. We note that defense counsel’s voir dire was limited only as to the charge
of felony murder and not the other two charges. Moreover, Defendant has not established
how he was prejudiced by the court’s ruling. This issue is without merit.

                                       CONCLUSION

       Finding no error, we affirm the judgments of the trial court.


                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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