        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 10, 2016

         STATE OF TENNESSEE v. TAZARIUS JAY VOND LEACH

            Direct Appeal from the Criminal Court for Davidson County
                    No. 2014-C-2329 Mark J. Fishburn, Judge



                No. M2015-01866-CCA-R3-CD – Filed April 19, 2017



A Davidson County Criminal Court Jury convicted the Appellant, Tazarius Jay Vond
Leach, of two counts of aggravated robbery and one count of carjacking. The trial court
imposed a total effective sentence of fifteen years. On appeal, the Appellant argues that
the State‟s providing “a hypothetical using the facts of the case” to explain criminal
responsibility during voir dire violated his right to a fair trial and impartial jury. Upon
review, we affirm the judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Luke Hammond and Nick McGregor, Nashville, Tennessee, for the Appellant, Tazarius
Jay Vond Leach.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Brian Ewald and
Leandra Varney, Assistant District Attorneys General, for the Appellee, State of
Tennessee.

                                       OPINION

                                 I. Factual Background

      The Davidson County Grand Jury indicted the Appellant and Devante Travis
Brooks a.k.a. Devonte Brooks for the aggravated robbery of Keith Beard, the aggravated
robbery of Bridgette Lofton,1 and carjacking. The offenses occurred at the Hickory Trace
Apartments complex, which was located behind Hickory Hollow Mall in Antioch.

       In the light most favorable to the State, the proof adduced at trial revealed that on
February 20, 2014, Beard and Lofton went to the apartment complex to see the new
apartment of Beard‟s co-worker, “Shawn.” They arrived at the complex between 7:15
and 7:45 p.m. and parked near the entrance because they did not know the exact location
of Shawn‟s apartment. Beard got out of the car and exchanged text messages with
Shawn. He advised Shawn of their arrival, and Shawn asked which car Beard had driven.
Beard responded that he had driven his Monte Carlo, and Shawn replied that he was on
his way to meet them. Beard and Lofton waited for ten or fifteen minutes, but Shawn
never arrived and did not answer Beard‟s telephone calls.

       While Beard and Lofton were waiting, the Appellant, in a white Impala, drove into
the parking space on the driver‟s side of the Monte Carlo and parked. Approximately
five minutes after the Impala arrived, Beard walked to the driver‟s door of the Monte
Carlo to get back into the car. At that time, Brooks got out of the front passenger side of
the Impala, pointed a black handgun at Beard, and said, “„Give me everything you got in
your pockets. Whatever you got, give it to me.‟” Beard put his hands up, begged Brooks
not to shoot him, and stated that he did not have anything. Beard noticed that the
Appellant, who was in the driver‟s seat of the Impala, appeared to be watching. Brooks
took Beard‟s cellular telephone and wallet containing ninety dollars in cash.

       After Brooks took the items, the Appellant got out of the Impala. Brooks asked
who was in the Monte Carlo, and Beard responded that the passenger was his fiancé.
Brooks pointed the gun at Beard and made him walk to the passenger side of the Monte
Carlo and open Lofton‟s door. The Appellant searched the inside of the car, “frisked”
Lofton, and took her cellular telephone and wallet. Meanwhile, Brooks told Beard to
stop looking at him because he did not want Beard to be able to identify him. After the
car was searched, the men told Lofton to get out of the car, and she complied. Brooks got
into the driver‟s seat of the Monte Carlo and drove away. The Appellant followed in the
Impala. Brooks shot at the victims as he drove from the scene.

       After the robbery, Beard and Lofton ran to the movie theater at the mall and called
the police. Metro Nashville Police (Metro) Officer William Durham arrived within ten or
fifteen minutes and took the victims back to the crime scene where they were joined by
two or three additional officers.




1
    At the time of trial, Lofton was married to Beard.

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       After speaking with the police, Beard contacted Shawn via Facebook and learned
that the perpetrators were “Taz and Devontae Brooks.” On February 21, 2014, Beard
went to the police department, filed a report, gave a statement to Detective Brandon
Dozier, and told the police the names of the perpetrators. Beard then was shown
photograph lineups from which he identified the Appellant as the driver of the Impala and
Brooks as the gunman. Lofton, however, was unable to make a positive identification of
the perpetrators.


       On the afternoon of May 30, 2014, Metro Officer Jamal L. Griffin was dispatched
to Hermitage to investigate a suspicious white Chevrolet Impala that was parked on
Hamilton Church Road. Upon learning that the vehicle was registered to the Appellant,
Officer Griffin called the Appellant‟s telephone number, identified himself as a police
officer, and tried to advise the person who answered that the car had been found, but the
person ended the call.

       While Officer Griffin was watching the Impala, a black man who resembled the
Appellant approached the car, produced a key, and got into the car. Officer Griffin
parked his patrol car behind the Impala, activated his car‟s emergency equipment, exited,
and told the driver to get out of the Impala. The driver looked at Officer Griffin, put the
vehicle in gear, and drove away. Officer Griffin did not pursue the vehicle.

       Later that day, the LaVergne Police Department was notified that Metro was
looking for the Appellant and his white Impala. The next day, after learning that the
Appellant was “known to have stayed” at a certain apartment complex, LaVergne Police
Lieutenant Konrad Kaul and other officers went to the complex to apprehend the
Appellant. The officers saw the Appellant leave the apartment and get into the Impala.
Lieutenant Kaul activated the emergency equipment on his patrol sport utility vehicle
(SUV), pulled in front of the Appellant‟s car, and stopped. Lieutenant Kaul ordered the
Appellant to stop his car, but the Appellant drove away. Shortly thereafter, the Appellant
was stopped and taken into custody.

      The Appellant presented no proof. He argued, however, that he had just “give[n
Brooks] a ride,” that he had no part in the planning of the robbery, and that the robbery
was committed by Brooks.

       The jury found the Appellant guilty of the aggravated robbery of Beard, the
aggravated robbery of Lofton, and carjacking, Class B felonies. The trial court sentenced
the Appellant to concurrent sentences of fifteen years for each conviction. On appeal, the
Appellant argues that the State‟s use of hypothetical facts to explain criminal
responsibility during voir dire of the jury pool violated his right to a fair trial and
impartial jury.
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                                       II. Analysis

       Prior to trial, the Appellant filed a “motion in limine to exclude hypothetical
questions that outline potential proof during voir dire.” In the motion, the Appellant
expressed concern that the State would use “hypothetical questions substantially outlining
the proof to be introduced . . . to extract a pledge from a potential juror.” The Appellant
argued that “[h]ypothetical questions taint potential jurors by forcing them to form
convictions prior to the proof and are not to be allowed during voir dire.” Immediately
prior to voir dire of the jury, the trial court asked the State for a response to the motion.
The State said, “Well, I guess it‟s a little vague for me, in describing criminal
responsibility for the conduct of another, typically you use a hypothetical.” The trial
court advised the State, “You can use a hypothetical, but not based on the facts of this
case.”

      During voir dire, the State gave the jury the legal definition of criminal
responsibility, then provided the following example:

              Let‟s . . . say we have four individuals, okay, and we‟ve got a
              bank, normal business hour bank; one individual is driving a
              vehicle; one individual gets out of the vehicle when it pulls up
              in front of the bank and he‟s gonna stand on the street corner,
              and two other individuals go into the bank, of the two
              individuals that go into the bank, one has a gun, one does not.
              The person who goes in with the gun, demands money from
              the bank tellers. The person without the gun takes the money
              from the bank tellers. They leave the bank. The lookout
              person positioned on the corner to lookout and see if anyone
              is coming, goes to the getaway car, which is parked outside,
              all four of them depart together. Okay. Everyone understand
              that example? In this case, in that example, each and every
              one of those individuals is guilty of, and that is the concept,
              criminal responsibility for the conduct of another. Okay. So,
              therefore an individual, such as the getaway driver, who never
              touched the gun, wasn‟t present for when it actually
              happened, didn‟t direct anyone to give them any money or
              anything like that, but was participating in that crime, was
              aiding that crime to occur, knew that crime was going on, you
              know, assisted in getting away, driving away, actually had
              some assistance in that crime, that person is just as guilty as
              the gunman. Do y‟all understand that? Does anyone think
              that that‟s wrong? Does anyone think that the getaway driver
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              shouldn‟t be held as culpable as the gunman in that case?
              Does anyone think the lookout shouldn‟t? Does anyone think
              that the accomplice inside shouldn‟t? Okay.

                     Now, of course that probably raises some questions, I
              mean, you want to know a lot of things to make sure you‟re
              gonna hold that getaway driver accountable as the gunman,
              surely you want to know if that person was aware that the
              crime was going on, you know, if that person – maybe that
              person wasn‟t aware, but then found out it occurred, and then
              benefited in the proceeds; as you heard, that‟s in the statute as
              well, you intend to benefit in the proceeds of a crime. Okay.
              Does anyone have any questions about the criminal
              responsibility for the conduct of another? Okay. Can
              everyone agree to follow that law? Anyone think they can‟t
              follow the law?

                     As I said, I bring that up because originally there were
              two individuals charged in this indictment, a name you‟re
              going to hear a lot is Devontae (phonetic) Brooks, he is not
              the person here on trial today, but you will hear about him.
              The person on trial is Tazarius Leach [the Appellant].

       Voir dire continued until the trial court excused the jury for lunch. At that time,
defense counsel reminded the trial court of its ruling on the motion in limine and objected
to the State‟s use of hypothetical facts that were “similar to the case at hand with the fact
pattern and scenario that we have.”

       The trial court overruled the objection, stating,

              [M]y understanding of the motion and what I think is
              inappropriate is that you give facts of this case and you ask
              them to comment on the facts of this particular case, yes, in
              the context in which he used, it was simply to give them
              insight, understanding of criminal responsibility for the
              conduct of another, but your objection is noted.

       On appeal, the Appellant argues that the hypothetical facts used by the State were
too similar to the facts of the case and violated the trial court‟s ruling. The Appellant
further argues that the hypothetical facts gave the jurors “a preconceived notion that the
[Appellant was] guilty” and were prejudicial to the Appellant. The State responds that
the Appellant failed to make a contemporaneous objection and contends that the issue
                                             -5-
was waived and may be addressed only as plain error. In the alternative, the State
contends that its use of hypothetical facts was proper and did not bias the jury. We agree
with the State.

        First, we will address the State‟s contention that the Appellant‟s failure to object
contemporaneously resulted in waiver of the issue. Generally, the failure to object
contemporaneously results in the waiver of an issue. See Tenn. R. App. P. 36(a). In the
instant case, the trial court ruled that the State could not use hypothetical facts based on
the facts of the case. The Appellant was obligated to raise a contemporaneous objection
at the time the statements to which he objected were made. Because the Appellant did
not do so, we agree with the State that the issue was waived and may be addressed only
in the event of plain error. See Tenn. R. App. P. 36(a) (providing that “[n]othing in this
rule shall be construed as requiring relief be granted to a party responsible for an error or
who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error”).

      We may consider an issue as plain error only when all five of the following factors
are met:

              a) the record must clearly establish what occurred in the trial
              court; b) a clear and unequivocal rule of law must have been
              breached; c) a substantial right of the accused must have been
              adversely affected; d) the accused did not waive the issue for
              tactical reasons; and e) consideration of the error is
              “necessary to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted);
see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the “plain error must be of such a great magnitude
that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (internal
quotation marks and citation omitted).

       Our supreme court has explained that “[t]he 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). Thus, prospective jurors may not be asked hypothetical
questions “to commit the jurors to a course of action.” Solomon v. State, 489 S.W.2d
547, 550 (Tenn. Crim. App. 1972). Nevertheless, “[t]he 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. Charles McClain, No. W2013-
00328-CCA-R3-CD, 2014 WL 4754531, at *11 (Tenn. Crim. App. at Jackson, Sept. 24,
2014) (citing State v. Irick, 762 S.W.2d 121, 125 (Tenn. 1988); State v. Black, 618
S.W.2d 526, 527 (Tenn. Crim. App. 1981)). We note that this court has previously
                                            -6-
approved of the use of hypothetical scenarios similar to the one used in the instant case,
concluding that it did not “ask for a commitment from the prospective jurors.” Id. at *10-
11; see State v. Devaron Taylor, No. W2009-01252-CCA-R3-CD, 2011 WL 4027147, at
*5 (Tenn. Crim. App. at Jackson, Sept. 12, 2011). Therefore, we conclude that the trial
court did not err by allowing the State to give the hypothetical example of criminal
responsibility. The Appellant is not entitled to relief on this issue.

                                    III. Conclusion

      Based upon the foregoing, we affirm the judgments of the trial court.



                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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