State of Tennessee v. Travis Kinte Echols

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 23, 2012 Session Heard at Cookeville1

STATE OF TENNESSEE v. TRAVIS KINTE ECHOLS

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Knox County

No. 82476 Bobby R. McGee, Judge

No. E2009-01697-SC-R11-CD - Filed October 10, 2012

The defendant, convicted of felony murder and sentenced to life in prison, appealed to the

Court of Criminal Appeals alleging a number of errors in the conduct of the trial, particularly

the trial court’s failure to suppress a statement the defendant had made to the police. The

Court of Criminal Appeals ruled that the statement was the product of an unlawful arrest, but

held that the admission of the statement qualified as harmless error. This Court granted the

defendant’s application for permission to appeal in order to determine the propriety of the

defendant’s arrest and to consider whether the Court of Criminal Appeals had used the

appropriate standard of review in its harmless error analysis. Because the arrest of the

defendant was supported by probable cause and there was no other prejudicial error during

the course of the trial, the judgment is affirmed.

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed

G ARY R. W ADE , C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,

C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Travis Kinte Echols.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

John H. Bledsoe and Mark A. Fulks, Senior Counsel; Randall E. Nichols, District Attorney

General; and Philip Morton, Assistant District Attorney General, for the appellee, State of

Tennessee.

1

Oral argument was heard in this case on May 23, 2012, in Cookeville, Putnam County, Tennessee,

as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

OPINION

On June 18, 2005, the Knoxville Police Department responded to a report of a

shooting incident at parking lot C of the Townview Towers apartment complex in Knoxville.2

The police found the victim, later identified as Robert Steely, a sixty-seven-year-old antique

car dealer, slumped over in the driver’s seat of a restored red and white 1958 Buick. The

victim’s wallet was missing, and he had bullet wounds in the chest. He later died at the

University of Tennessee Hospital. The keys to the Buick were in the ignition, but the engine

was off and the windows were down. Police discovered a loaded .38 Titan Tiger (“.38

Special”) revolver underneath the victim’s left arm. The weapon contained five live rounds

and one spent round. Two .22 caliber cartridge cases were located on the pavement near the

Buick. Police found a .22 caliber bullet behind the passenger door panel of the Buick and

a .38 caliber bullet, later determined to have been fired from the victim’s gun, lodged in a

vehicle nearby.

Investigator Steve Still of the Knoxville Police Department interviewed several

individuals at the crime scene who had heard gunshots, but none had witnessed the shooting.

The police also found the victim’s fingerprints on the outside of the Buick, and those of

Rebecca Ann Carpenter on the passenger side window frame and on a soft drink can.

Testing of the three .22 caliber bullets, two of which were recovered from the victim’s chest,

produced inconclusive results. Although an expert was unable to determine whether they

were fired from the same gun, the markings indicated that the bullets could have been fired

from either a pistol, a semi-automatic revolver, or a rifle. Testing by the Tennessee Bureau

of Investigation Crime Laboratory confirmed that the victim could have fired a weapon “or

was near a gun when it fired.”

Early in the investigation, Investigator Still received information from an unnamed

source that Amanda Harshaw, a resident in unit D218 at the apartment complex, had

permitted a black male named “Travis,” who had a missing front tooth, to use her telephone

shortly after the shooting took place. When questioned, Ms. Harshaw confirmed that she had

overheard Travis say that he had shot someone in parking lot C who had a lot of money in

his possession. Eight days after the shooting, Investigator Still received information from

the same unnamed person that “Travis” had returned to Ms. Harshaw’s apartment. Sergeant

Tony Willis and several other officers were dispatched to the apartment. According to

Sergeant Willis, a “female,” presumably Ms. Harshaw, answered the door and gave him

permission to search. Travis Kinte Echols (“the Defendant”), who matched the description

Ms. Harshaw had given Investigator Still, was found in the bathroom of the apartment.

Officers handcuffed the Defendant, who identified himself as Travis Brabson, and took him

2

We refer to the apartment complex by its actual name, “Townview Towers,” although portions of

the record identify it as “Town View Towers.”

-2-

into custody. Before the Defendant was questioned, Sergeant Willis learned that there was

an outstanding warrant for a “Travis Brabson” for failure to appear in court.

Investigator Still advised the Defendant of his Miranda rights and conducted a

videotaped interview. After acknowledging that he knew the victim had fired his weapon,

Investigator Still informed the Defendant that his statement could make a difference between

a possible life sentence and some other less onerous form of punishment. Eventually, the

Defendant admitted shooting the victim, but asserted that he had acted in self-defense. He

explained that after the shooting he had thrown the gun in a quarry located in Halls. He

showed Investigator Still where he claimed to have disposed of the weapon, but it was never

found.3 Afterward, the Defendant was returned to the police station, the interview was

concluded, he was charged, and placed in jail.

Suppression Hearing

After being indicted for felony murder during the perpetration of a robbery, the

Defendant moved to suppress the statement he had made to law enforcement officers,

claiming that the statement was the product of an unlawful detention and arrest. The trial

judge at that time, Kenneth F. Irvine, Jr., denied the motion. When Judge Irvine was

succeeded in office by Judge Bobby R. McGee, the Defendant renewed the motion to

suppress.

At the second suppression hearing, Investigator Still testified that during the week

after the shooting, he discovered an individual who claimed to have learned that a man

named “Travis” had admitted shooting somebody in lot C in a telephone call made from

apartment D218 of Townview Towers. At that time, the police were not investigating any

other shootings in lot C. Investigator Still interviewed Ms. Harshaw, the occupant of the

apartment, and she confirmed that at some point after the shooting she had allowed a black

male named “Travis,” who was missing a front tooth, to use her telephone and that she had

overheard him say he had shot someone in lot C. Ms. Harshaw assured Investigator Still that

she would contact him if “Travis” showed up at her apartment again. On the night of June

26, 2005, the same individual who had referred Investigator Still to Ms. Harshaw called him

while he was off duty to report that “Travis” was at apartment D218. Investigator Still then

contacted Sergeant Tony Willis and asked him to go to Ms. Harshaw’s apartment. A short

while later, after the Defendant was taken into custody and transported to the jail,

Investigator Still advised him of his rights and obtained a signed waiver before conducting

an interview. When the Defendant indicated that he had a prior arrest in Anderson County,

officials obtained his social security number and found several arrest records in the name of

Travis Echols.

3

Divers searched the quarry but were unable to recover the gun.

-3-

Sergeant Willis testified at the hearing that on June 26, 2005, he was on patrol duty

when he received information from Investigator Still that the primary suspect in the lot C

homicide was in apartment D218 at Townview Towers. Investigator Still described the

suspect as an African-American male named “Travis” who was missing a front tooth. When

Sergeant Willis and other officers arrived at the apartment, they were given permission by

“a white female” to conduct a search. Sergeant Willis described her as “extremely nervous.”

Sergeant Willis found no one in the kitchen, living room, or the bedroom, but the bathroom

door was closed. He directed the Defendant, who was inside, to come out. When the

Defendant did so, he was ordered to the floor and handcuffed. The Defendant matched the

description provided by Investigator Still and identified himself as Travis Brabson. While

he was being taken to jail, which was only minutes away, Sergeant Willis learned that there

was an outstanding arrest warrant for failure to appear on a misdemeanor drug citation in the

name of Travis Brabson.

At the conclusion of the hearing, Judge McGee denied the motion to suppress, holding

that the officer “had reasonable suspicion to justify a brief detention” and, for safety

purposes, “to cuff him and take him into custody.” While observing that the probable cause

necessary to justify an arrest warrant was “pretty close,” Judge McGee held that even if the

police had insufficient information, the arrest was valid because the police soon learned of

the warrant for the Defendant’s arrest for his failure to appear in another case. Judge McGee

also ruled that the Defendant’s statement was not the product of coercion or intimidation.

Trial

At trial, the victim’s daughter, Darlene Thomas, portrayed her father as an army

veteran and a hard-working, family man who cared for his disabled wife for some twenty-one

years prior to her death. She testified that the victim bought and restored antique cars as a

hobby. She further testified that he always carried a wallet and that “[h]e might have seven

or eight thousand dollars on him at one time.” She stated that he typically had a handgun

either in his pocket or under the front seat of his car, even though he did not have a permit.

Ms. Thomas also stated that the victim had a girlfriend whom she had never met.

George Hammontree testified that on the date of the murder he had attended a birthday

party at Townview Towers. He recalled that when he returned to his car for cigarettes, he

dropped them to the floorboard and was reaching down to retrieve them when someone

yelled, “Give it up[, g]ive it up.” He then saw two black males and one white female next

to a red and white car. He testified that one of the males, who had “dreadlocks,” pointed a

rifle at an older man who was seated in the vehicle with his hands in the air. When

Hammontree saw the rifle, he moved to the floor of his van and then heard “pat, pat, pat,

boom”—the sounds of “three small [shots] and then one big one.” Hammontree, who

claimed to be familiar with weapons, testified that the first three shots were fired from a .22

-4-

caliber automatic rifle whereas the final shot had come from a larger caliber gun. When he

heard no more gunshots, Hammontree looked up and saw the female running with so much

effort that she lost her tennis shoes. He recalled that the two males ran down a bank.

Hammontree claimed that he was so scared by the shooting, he returned to the party and

chose not to make a statement to police officers who later arrived at the scene.

One or two weeks later, Hammontree contacted Investigator Still and identified the

Defendant from a photographic lineup as the individual who had shot the victim. At trial,

Hammontree again identified the Defendant as the assailant, claiming “a hundred percent”

certainty. On cross-examination, however, Hammontree acknowledged that during the

Defendant’s preliminary hearing, he had identified another individual as the person who fired

the shots. He explained, however, that “[t]hey both look alike[,] . . . both had their hair

poofed out” and that he had “just [made] a mistake” at the hearing as a result of his

nervousness. Hammontree also admitted that he had a criminal record, including convictions

for aggravated burglary, theft, and criminal impersonation. While acknowledging that

forgery and theft charges were pending against him, he claimed that he was not promised

anything by the State in return for his testimony against the Defendant.4

Rebecca Ann Carpenter, who sometimes worked as a prostitute and admitted to

having a drug problem, testified that she had gone to Townview Towers to purchase drugs

on the morning of the shooting. She stated that later that day, in a different part of town, she

approached the victim because he had motioned for her to come to his car. She claimed that

even though the victim had mistaken her for someone else, she spoke to the victim and then

asked for a ride in his restored car. The victim agreed to drive her home and, according to

Ms. Carpenter, offered to take her to his residence for drinks. She denied that they ever

discussed sex. When she asked for “pot,” the victim drove her to Townview Towers and

removed eighteen dollars from his wallet, which, she said, contained “[l]ots of money.”

Upon arriving at the apartment complex, Ms. Carpenter walked down the steps into a

corridor and recognized the Defendant as the person who had sold her crack cocaine earlier

that morning. When Ms. Carpenter returned to the victim’s car to ask for more money, she

saw the Defendant point a silver and black, long-barrel weapon at the victim. Ms. Carpenter

described the Defendant as a black male, with “long hair,” “[k]ind of a fro like,” and “[k]ind

of frizzy looking,” and possibly having a mustache. She claimed that she did not hear the

Defendant say “give it up” and did not remember seeing the victim put his hands up in the

air. She testified that when she heard the first gunshot she “hit the ground,” and, when the

firing ceased after four or five more shots, she reached in through the victim’s open car

4

Later, when the charges against Hammontree were dismissed by the State, the trial court denied

the Defendant’s request to so inform the jury.

-5-

window, grabbed her purse from the passenger seat, and ran away. She claimed that the

victim’s wallet was still in his back pocket when she fled. She did not recall any other person

besides the Defendant being near the scene of the shooting.

Ms. Carpenter further testified that as she fled down some steps after the shooting, she

ran into the Defendant, who instructed her to go back and look for the shells from his gun.

Ms. Carpenter stated that she ran out of her flip-flops as she returned to the scene and

pretended to look for the shells, but became fearful and ran back down the steps. She

claimed that the Defendant then told her to return to the vehicle and wipe away her

fingerprints. Ms. Carpenter testified that she only pretended to follow the Defendant’s

instructions and did not wipe away her prints. Ms. Carpenter explained that she hid in the

apartment complex for a period of time after the Defendant had left. Several weeks later, she

told Investigator Still what had happened and identified the Defendant from a photographic

lineup. When asked to make an identification of the Defendant during the trial, however,

Ms. Carpenter testified that she was unable to because she could not “see good without [her]

glasses.” On cross-examination, Ms. Carpenter admitted to having a conviction for

tampering with government records.

James Blackwell, who had been incarcerated with the Defendant at the Knox County

penal farm, was serving a federal sentence for cocaine distribution at the time of the trial.

Called as a witness by the State, he testified that the Defendant had informed him that he was

facing twenty-five years to life for shooting and killing a man in self-defense. According to

Blackwell, the Defendant confided that he was arranging for the man to buy drugs from his

cousin, but when he saw how much money the man had, he armed himself with a .22 caliber

rifle and then robbed him of almost ten thousand dollars. Blackwell recalled that the

Defendant claimed that he shot the man only because the man had shot at him first.

Blackwell stated that the Defendant referred to the money as “a knot,” which he described

as “[a] big wad of cash,” and remembered that the Defendant had said he planned to use the

money to pay for his attorney. He also recalled the Defendant saying that he tossed the gun

into the river under the James White Parkway. On cross-examination, Blackwell admitted

that he had entered into a plea agreement on his federal charge and that the plea agreement

had set out the “nature, extent, and value of [his] cooperation” in this case. He conceded that

the federal prosecutor had requested a downward departure from the federal sentencing

guidelines as part of that plea agreement.

The Defendant, who testified in his own defense, first attempted to explain his use of

two surnames. He claimed that at the age of fifteen his name was legally changed from

Echols to Brabson. He explained that he did not change the name on his driver’s license

because he did not have the court order at the time he renewed his license. He further

maintained that he signed “Echols” after his arrest only because he was charged under the

-6-

name Echols.

The Defendant testified that on the date of the shooting, he was selling drugs at

Townview Towers when he saw a red and white car driven by the victim, who was white,

and occupied by a white female enter into the parking lot. He explained “[n]ot too many

white people just pull into [Townview Towers] unless they was looking for crack cocaine.”

The Defendant stated that when the female stepped out of the car, he first asked her for a

cigarette, which he described as a customary “ice breaker” before a drug transaction, but she

kept going and did not respond. He claimed that when he then asked the victim if he could

have a cigarette, the victim “freaked out,” reached under his seat for a gun, and, as the

Defendant ran for cover, fired a shot. The Defendant admitted that he then took a gun from

his back pocket and, fearing the victim might shoot again, fired three or four shots in his

direction. He contended that he never ordered the victim to put his hands in the air. The

Defendant denied that he robbed the victim and testified that after the shooting, he took his

rental car, drove to a quarry in Halls, and threw the pistol into the water. He also contended

that he never spoke to Blackwell, whom he had identified as a federal inmate by his beige

uniform, because federal prisoners at the penal farm were known to cooperate with the

police. He further denied that he had ever worn dreadlocks.

The jury returned a verdict of guilt for felony murder during the perpetration of a

robbery, and the trial court imposed a sentence of life imprisonment. State v. Echols, No.

E2009-01697-CCA-R3-CD, 2011 WL 2418737, at *1 (Tenn. Crim. App. June 14, 2011).

On direct appeal, the Court of Criminal Appeals determined that the Defendant’s statement

should have been suppressed because (1) his arrest and detention prior to the statement were

not supported by probable cause; and (2) that there was not a sufficient attenuation between

the unlawful arrest and the statement. Id. at *13-14. The Court affirmed the conviction,

however, because it determined that the erroneous admission of the statement had no effect

on the verdict under the standard set out in Tennessee Rule of Appellate Procedure 36(b).5

Id. at *14.

This Court granted the Defendant’s Rule 11 application primarily to consider

(1) whether the police had either reasonable suspicion to detain or probable cause to arrest

the Defendant; and (2) whether the Court of Criminal Appeals should have evaluated the trial

court’s error in admitting the Defendant’s statement under the non-structural constitutional

standard, requiring a finding of harmless error beyond a reasonable doubt, rather than the

5

Tennessee Rule of Appellate Procedure 36(b) provides that “[a] final judgment from which relief

is available and otherwise appropriate shall not be set aside unless, considering the whole record, error

involving a substantial right more probably than not affected the judgment or would result in prejudice to

the judicial process.”

-7-

standard for non-constitutional errors set out in Tennessee Rule of Appellate Procedure

36(b).6 The Court has also chosen to address issues relating to the validity of the Defendant’s

waiver of his Miranda rights, the State’s peremptory challenge of a prospective juror, the

sufficiency of the evidence, and limitations on cross-examination. In our view, the Court of

Criminal Appeals satisfactorily addressed and rejected the Defendant’s claims as to the

remaining issues: (1) the admission of evidence that the victim carried a wallet and large

sums of cash; (2) the duty of the State to disclose exculpatory evidence; (3) the denial of a

mistrial for comments made by the State during opening statement; and (4) the admission of

re-enactment photographs. See Echols, 2011 WL 2418737, at *16-18, *21-22, *24-25.

I.

The Defendant argues that the Court of Criminal Appeals correctly determined that

the police officers did not have probable cause for the arrest and erred only by finding that

the admission of his statement, although the product of an unlawful arrest, had no effect on

the results of the trial. His argument is based, in part, on the fact that the individual who

provided Investigator Still with the name of Ms. Harshaw was not identified during the

course of the trial and, further, that Investigator Still did not offer specific proof as to

whether Ms. Harshaw had a criminal history. The Defendant also describes Sergeant Willis’

conduct as based upon “scant information,” arguing that at the time he was arrested, he had

not been linked to any specific shooting.

As an alternative ground for the suppression of his statement to Investigator Still, the

Defendant argues that the waiver of his Miranda rights was not knowingly, intelligently, and

voluntarily made. In support of this claim, the Defendant asserts that after his arrest, he was

taken “in the middle of the night” to a small room at the police department and instructed by

an armed officer to initial and sign the waiver of rights form even though the Defendant

could neither read nor write well. The Defendant further complains that he was improperly

influenced by Investigator Still’s suggestion that telling his side of the story might be the

difference between a short period of incarceration or one for life.

Initially, the standard of review applicable to suppression issues is well established.

When the trial court makes findings of fact at the conclusion of a suppression hearing, they

are binding upon this Court unless the evidence in the record preponderates against them.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Questions of credibility of the witnesses,

6

As explained below, we have determined that there was probable cause for the warrantless arrest

of the Defendant and that the Defendant knowingly, intelligently, and voluntarily waived his Miranda rights.

Accordingly, the admission of his statement to Investigator Still was not erroneous, and we need not address

whether the Court of Criminal Appeals should have evaluated the error under the harmlessness standard for

non-structural constitutional errors.

-8-

the weight and value of the evidence, and resolution of conflicts in the evidence are matters

entrusted to the trial judge as the trier of fact. Id. The party prevailing in the trial court is

entitled to the strongest legitimate view of the evidence adduced at the suppression hearing

as well as all reasonable and legitimate inferences that may be drawn from that evidence. Id.

Our review of a trial court’s application of law to the facts is de novo with no

presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Further, when

evaluating the correctness of the ruling by the trial court on a motion to suppress, appellate

courts may consider the entire record, including not only the proof offered at the hearing, but

also the evidence adduced at trial. State v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005);

State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998); see also 6 Wayne R. LaFave,

Search and Seizure: A Treatise on the Fourth Amendment § 11.7(d), at 456-59 (4th ed. 2004)

[hereinafter LaFave].

A. Probable Cause

Both the state and federal constitutions protect against unreasonable searches and

seizures; the general rule is that a warrantless search or seizure is presumed unreasonable and

any evidence discovered is subject to suppression. See U.S. Const. amend. IV (“The right

of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated . . . .”); Tenn. Const. art. I, § 7 (“[T]he people

shall be secure in their persons, houses, papers and possessions, from unreasonable searches

and seizures . . . .”). This Court has recognized three categories of police interventions with

private citizens: (1) a full-scale arrest, which requires probable cause; (2) a brief

investigatory detention, requiring reasonable suspicion of wrongdoing; and (3) a brief police-

citizen encounter, requiring no objective justification. State v. Daniel, 12 S.W.3d 420, 424

(Tenn. 2000). “While arrests and investigatory stops are seizures implicating constitutional

protections, consensual encounters are not.” State v. Nicholson, 188 S.W.3d 649, 656 (Tenn.

2006).

A full-scale arrest supported by probable cause is, of course, an exception to the

warrant requirement. State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009) (citing Brown v.

Illinois, 422 U.S. 590, 598 (1975)). “Probable cause . . . exists if, at the time of the arrest,

the facts and circumstances within the knowledge of the officers, and of which they had

reasonably trustworthy information, are ‘sufficient to warrant a prudent [person] in believing

that the [defendant] had committed or was committing an offense.’” State v. Bridges, 963

S.W.2d 487, 491 (Tenn. 1997) (second alteration in original) (quoting Beck v. Ohio, 379

U.S. 89, 91 (1964)); see also State v. Richards, 286 S.W.3d 873, 879 (Tenn. 2009) (“[T]he

‘prudent person’ standard provides the best guidance for law enforcement officers and

reviewing courts.”). “Probable cause must be more than a mere suspicion.” State v.

Lawrence, 154 S.W.3d 71, 76 (Tenn. 2005) (citing State v. Melson, 638 S.W.2d 342, 350

-9-

(Tenn. 1982)). Nevertheless, probable cause “‘deal[s] with probabilities[,] . . . not

technical[ities,] . . . the factual and practical considerations of everyday life on which

reasonable and prudent [persons] . . . act.’” State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008)

(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).

In addition, the existence of probable cause depends upon the accumulated

information known to law enforcement. LaFave § 3.5(b), at 273-85. Information within the

collective knowledge of law enforcement may properly factor into the probable cause

inquiry, however, only if there exists a sufficient nexus of communication between the

arresting officer and another officer with knowledge of the information in question. Such

a nexus may be found when one officer relays information to another officer or when an

officer directs or requests that another officer take action.7 Id. § 3.5(a)-(b), at 269-74.

Further, Tennessee Code Annotated section 40-7-103(a) (2006) authorizes a felony

arrest based upon “reasonable cause”:

(a) An officer may, without a warrant, arrest a person:

....

(3) When a felony has in fact been committed, and the officer has reasonable

cause for believing the person arrested has committed the felony[.]

In determining whether there exists a proper basis for arrest, our courts have not

distinguished between the statutory term “reasonable cause” and the more traditional term

“probable cause.” See Melson, 638 S.W.2d at 350.

An arrest is defined as “‘the taking, seizing, or detaining of the person of another,

either by touching or putting hands on him, or by any act which indicates an intention to take

him into custody and subject the person arrested to the actual control and will of the person

making the arrest.’” State v. Crutcher, 989 S.W.2d 295, 301 (Tenn. 1999) (quoting West v.

State, 425 S.W.2d 602, 605 (Tenn. 1968)); see also LaFave § 5.1(a), at 7-14. While an arrest

may occur without formalities such as station house booking or an explicit declaration by an

7

We also note that an arresting officer’s reliance on information provided by another officer will

not prevent the exclusion of evidence if the collective knowledge of law enforcement falls short of

establishing probable cause. See Whiteley v. Warden, 401 U.S. 560, 568 (1971) (“[A]n otherwise illegal

arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers

to make the arrest.”), overruled in part by Arizona v. Evans, 514 U.S. 1, 13-14 (1995) (holding that evidence

improperly seized based on incorrect information was not subject to suppression because the erroneous

information resulted from clerical errors of court employees).

-10-

officer that a person is under arrest, “there must be actual restraint on the arrestee’s freedom

of movement under legal authority of the arresting officer.” Crutcher, 989 S.W.2d at 301-02.

As with any seizure, “the litmus test is the objective belief of a reasonable person in the

position of the defendant, not that of the officer.” State v. Williams, 185 S.W.3d 311, 318

(Tenn. 2006).

Under the circumstances developed at trial, we begin with the proposition that the

Defendant was placed under arrest at Ms. Harshaw’s apartment. Multiple officers were

present. The Defendant was ordered from the bathroom, required to lie on the floor, and then

placed in handcuffs. As observed by the Court of Criminal Appeals, this qualified as a “full-

blown arrest,” not a brief investigatory detention as ruled by the trial court. Echols, 2011 WL

2418737, at *12. The significant question, therefore, is whether the police had the requisite

probable cause to justify the arrest. Although the trial court may have accurately described

the issue as “close,” we believe that all of the information available to the police provided

a proper basis for the arrest.

Initially, if an ordinary citizen provides information relied upon for probable cause,

no showing of the informant’s basis of knowledge or veracity is required. Melson, 638

S.W.2d at 354-56; State v. Smith, 867 S.W.2d 343, 347 (Tenn. Crim. App. 1993) (holding

that a “citizen informant”—such as a victim or bystander witness—who provides information

for a search warrant affidavit is entitled to a presumption of reliability). It is only when “the

arresting officers rely in part on information from an informant from the criminal

milieu[ that] they must be able to demonstrate that the informant (1) has a basis of knowledge

and (2) is credible or his information is reliable.” State v. Lewis, 36 S.W.3d 88, 98 (Tenn.

Crim. App. 2000); see also State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989) (adopting

the two-prong test in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States,

393 U.S. 410 (1969), for evaluating information in a search warrant affidavit provided to law

enforcement by informants). In the absence of any information as to whether an anonymous

informant is a citizen-informant, the reliability of the informant may not be presumed. See

State v. Carter, 160 S.W.3d 526, 534 (Tenn. 2005).

In this instance, the record does not disclose information sufficient to determine

whether the unidentified source who referred Investigator Still to Ms. Harshaw qualified as

a citizen-informant. The fact that the unidentified source may not be presumed reliable,

however, does not affect the probable cause determination under the facts of this case.

Investigator Still used the information from the unidentified source only as a lead to

investigate the shooting by interviewing Ms. Harshaw. Ms. Harshaw herself then provided

Investigator Still with a description of the Defendant and described the phone conversation

in which he admitted to shooting someone in parking lot C at Townview Towers. Moreover,

the statement from Ms. Harshaw to Investigator Still substantiated the basis of the

-11-

unidentified informant’s knowledge and accredited her claims.

As to Ms. Harshaw, we find there are sufficient facts to conclude that she was a

citizen-informant. Investigator Still identified Ms. Harshaw at the suppression hearing, and

he testified that when he checked her background, he found no criminal history. He further

verified that he had spoken with her in person at her place of employment, at which time she

verified that she lived in an apartment at the Townview Towers and provided the information

regarding the phone conversation she overheard. These facts qualify Ms. Harshaw as a

citizen-informant entitled to a presumption of reliability. See Melson, 638 S.W.2d at 354-56.

Furthermore, the information provided by Ms. Harshaw, combined with the other facts

within the officers’ collective knowledge, supplied probable cause to arrest the Defendant.

The unidentified source informed Investigator Still a few days after the shooting that Ms.

Harshaw had overheard the Defendant admit to shooting someone in lot C at the Townview

Towers. Investigator Still, acting on the tip, interviewed Ms. Harshaw, who confirmed that

she had overheard “Travis”—whom she described as a black male with a missing front

tooth—admit to shooting someone in the parking lot of the apartment complex. Within a few

days, the same unnamed source telephoned Investigator Still to report that “Travis” was at

Ms. Harshaw’s apartment. Investigator Still, who was off duty at the time he received the

call, informed Sergeant Willis that the primary suspect in the shooting was at apartment

D218 in the Townview Towers. Investigator Still provided Sergeant Willis with the

description of the suspect and asked him to “locate [Travis] and detain him.” When he

arrived at the apartment, Sergeant Willis asked for and received permission from Ms.

Harshaw to conduct a search. When Sergeant Willis discovered that someone was in the

bathroom, he directed that person to come out. At that point, the Defendant, a black male

with a missing or broken front tooth, emerged from the bathroom, and, during the course of

the arrest, identified himself as “Travis Brabson.” At all times from the death of the victim

until the Defendant’s arrest, no other homicides at lot C were under investigation. Further,

there had been no other shootings at lot C during the week after the crime.

From all of this, we conclude that based upon the evidence submitted at the

suppression hearing and the trial, the collective knowledge of Investigator Still and Sergeant

Willis qualified as “‘reasonably trustworthy information’” from which a prudent person

could infer that the Defendant had committed an offense. Day, 263 S.W.3d at 902 (quoting

Brinegar, 338 U.S. at 175-76). The police, therefore, had a proper basis for the arrest.

B. Waiver of Miranda Rights

The Defendant also argues that he did not voluntarily waive his Miranda rights. It is

the duty of the trial judge to determine the voluntariness and the admissibility of a

defendant’s pretrial statement. State v. Pursley, 550 S.W.2d 949, 952 (Tenn. 1977). In

-12-

Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court ruled that

before a custodial interrogation, police officers must advise a defendant of the right to remain

silent and the right to counsel. If these warnings are not given, any statement elicited from

a defendant is not admissible in the prosecution’s case-in-chief at trial. Dickerson v. United

States, 530 U.S. 428, 443-44 (2000); Stansbury v. California, 511 U.S. 318, 322 (1994). A

defendant’s rights to counsel and against self-incrimination may be waived as long as the

waiver is made “voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 479; State

v. Mann, 959 S.W.2d 503, 529 (Tenn. 1997). In determining whether a waiver of Miranda

rights was voluntary, knowing, and intelligent, the totality of the circumstances must be

examined. State v. Callahan, 979 S.W.2d 577, 581 (Tenn. 1998); State v. Bush, 942 S.W.2d

489, 500 (Tenn. 1997). Certain factors apply in the determination of whether a waiver of

Miranda rights qualifies as voluntary, knowing, and intelligent: the age and background of

the defendant; his education and intelligence level; his reading and writing skills; his

demeanor and responsiveness to questions; his prior experience with the police; any mental

disease or disorder; any intoxication at the time of the waiver; and the manner, detail, and

language in which the Miranda rights were explained. See State v. Blackstock, 19 S.W.3d

200, 208 (Tenn. 2000); Callahan, 979 S.W.2d at 583 (discussing waiver of Miranda rights

by juvenile).

The record establishes that Investigator Still read to the Defendant all of the rights

outlined in Miranda. When the Defendant hesitated before signing the form, Investigator

Still informed him that he could stop the interview at any time. The Defendant then signed

the form, as requested. The Defendant was twenty-six years of age at the time of the

interview, was a high school graduate, and had experienced previous encounters with law

enforcement. The length of his detention prior to the interview was relatively brief. The

Defendant was neither intoxicated nor ill at the time of his statement. Nothing indicated that

he suffered from any mental disorder. Further, there was no suggestion of police abuse or

threats. In our view, the trial court and the Court of Criminal Appeals properly found that

the Defendant had knowingly, intelligently, and voluntarily waived his rights under Miranda.

II.

The Defendant next argues that the State, by peremptory challenge, improperly

removed one of only two African Americans on the prospective juror list. In response, the

State submits that the challenge was not discriminatory. During voir dire, the State utilized

a peremptory challenge to excuse an African-American woman as a prospective juror. The

Defendant challenged the State’s use of the peremptory challenge, pointing out that she was

one of only two African Americans on the panel. While acknowledging that no specific

questions had been asked of the prospective juror, the State explained that she had failed to

make eye contact when examined, had “asked the court officer something,” and was “rocking

back . . . in her chair and fidgeting,” and, therefore, the State had “sense[d] that she [did not]

-13-

want to be [there] . . . to the level of almost being angry about still being seated.” The

Defendant pointed out that there were other potential jurors who had vocalized a desire to

be excused from jury service and were denied, whereas the prospective juror at issue had not

made any objections.

In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the United States Supreme Court held

that the prosecutor’s use of peremptory challenges to intentionally exclude jurors of the

defendant’s race violates his right to equal protection under the Fourteenth Amendment to

the United States Constitution. Five years later, in Powers v. Ohio, 499 U.S. 400, 409

(1991), the Court eliminated the requirement that any wrongfully excluded juror be of the

same race as the defendant in order to merit protection under the rule. See also State v.

Ellison, 841 S.W.2d 824, 826 (Tenn. 1992). Under Powers, a defendant establishes a prima

facie case of purposeful discrimination merely by demonstrating that the prosecution

excluded members of a cognizable racial group from the jury pool. Ellison, 841 S.W.2d at

826 (citing Powers, 499 U.S. at 416). If a defendant establishes a prima facie case of

impermissible discrimination, the State must provide a race-neutral explanation for the

challenges at issue. State v. Kiser, 284 S.W.3d 227, 255-56 (Tenn. 2009). If the State offers

a race-neutral explanation, the trial court must “determine, ‘from all of the circumstances,

whether the defendant has established purposeful discrimination.’”8 Id. (quoting State v.

Hugueley, 185 S.W.3d 356, 368 (Tenn. 2006)). “The trial court may not simply accept a

proffered race-neutral reason at face value but must examine the prosecutor’s challenges in

context to ensure that the reason is not merely pretextual.” Id. (quoting Hugueley, 185

S.W.3d at 368). We have emphasized that under the Batson rule, trial courts “must carefully

articulate specific reasons for each finding on the record, i.e., whether a prima facie case has

been established; whether a neutral explanation has been given; and whether the totality of

the circumstances support a finding of purposeful discrimination.” Hugueley, 185 S.W.3d

at 369 (quoting Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 906 (Tenn.

1996)).

In this instance, the trial court did not expressly find that the Defendant had made a

8

Analogizing to case law applying Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C.

§ 2000e et seq. (1982), the Court in Batson suggested that decisions involving disparate treatment claims in

the employment context “have explained the operation of prima facie burden of proof rules.” 476 U.S. at

94 n.18. In Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 540 (9th Cir. 1982),

the court held that whether the “proof established a prima facie case thus shifting the burden . . . is a legal

conclusion freely reviewable on appeal.” When the trial court’s findings are based on the credibility of

witnesses, however, the standard of review is whether the decision was clearly erroneous. See Sherpell v.

Humnoke Sch. Dist. No. 5 of Lonoke Cnty., 874 F.2d 536, 539 (8th Cir. 1989); Barnes v. Small, 840 F.2d

972, 976 (D.C. Cir. 1988). This standard of review extends to the trial court’s evaluation of a prosecutor’s

credibility in ruling on a Batson claim. Kiser, 284 S.W.3d at 255-56.

-14-

prima facie case of purposeful discrimination but considered the State’s explanation and

upheld the challenge to the prospective juror as race neutral. The trial judge stated, “I’ve

noticed also some of the things [the State] is talking about. [The prospective juror] has

gotten the officer’s attention a couple of times.” In making the ruling, the trial judge

explained that the prospective juror appeared to be anxious and that “she had, in fact, asked

permission to leave the courtroom.” In our view, the totality of the circumstances does not

support a finding of purposeful discrimination. The trial court properly overruled the

Defendant’s objection to the peremptory challenge.

III.

The Defendant also argues that the evidence was insufficient to establish that the

Defendant killed the victim during the perpetration of a robbery. He submits that there exists

reasonable doubt as to whether the shooting was in self-defense rather than during the

perpetration of a robbery.

Traditional principles apply to the appellate review of challenges to the sufficiency

of the convicting evidence. Initially, a guilty verdict “shall be set aside if the evidence is

insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt.”

Tenn. R. App. P. 13(e). Further, “the State must be afforded the strongest legitimate view

of the evidence and all reasonable inferences that may be drawn therefrom.” State v.

Vasques, 221 S.W.3d 514, 521 (Tenn. 2007) (citing State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978)). The jury, as the trier of fact, is empowered to assess the credibility of the

witnesses, to address the weight to be given their testimony, and to reconcile any conflicts

in the proof. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State,

575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). The relevant question is whether, after

reviewing the evidence in the light most favorable to the State, 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, 319 (1979); see also Tenn. R. App. P. 13(e). “Because a verdict of

guilt removes the presumption of innocence and raises a presumption of guilt, the criminal

defendant bears the burden on appeal of showing that the evidence was legally insufficient

to sustain a guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (citing State

v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).

The State presented direct evidence of the Defendant’s guilt and also offered

circumstantial evidence. A criminal offense may, of course, be established exclusively by

circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). Ultimately,

however, the jury must decide the significance of the circumstantial evidence, as well as

“‘[t]he inferences to be drawn from such evidence, and the extent to which the circumstances

are consistent with guilt and inconsistent with innocence.’” State v. Rice, 184 S.W.3d 646,

662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). We may

-15-

not substitute our own inferences for those drawn by the trier of fact. State v. Lewter, 313

S.W.3d 745, 748 (Tenn. 2010). In State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011), this

Court abolished any distinction between the standard of proof required at trial in cases based

solely upon circumstantial evidence and that in cases where direct evidence of guilt is

presented by the State. The standard of review is, therefore, identical whether the conviction

is based upon direct evidence or circumstantial evidence or a combination of both, as in the

case before us. Id. at 379; see also Hanson, 279 S.W.3d at 275.

Felony murder is defined, in relevant part, as the “killing of another committed in the

perpetration of or attempt to perpetrate . . . robbery.” Tenn. Code Ann. § 39-13-202(a)(2)

(2010). “Robbery is the intentional or knowing theft of property from the person of another

by violence or putting the person in fear.”9 Id. § 39-13-401(a). The State is, of course,

required to prove each and every element of the offense during the course of the trial.

Self-defense is a question of fact for the jury. State v. Clifton, 880 S.W.2d 737, 743

(Tenn. Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). At

the time of the shooting, self-defense was defined by statute, which, in pertinent part,

provided as follows:

(a) A person is justified in threatening or using force against another person

when and to the degree the person reasonably believes the force is immediately

necessary to protect against the other’s use or attempted use of unlawful force.

The person must have a reasonable belief that there is an imminent danger of

death or serious bodily injury. The danger creating the belief of imminent

death or serious bodily injury must be real, or honestly believed to be real at

the time, and must be founded upon reasonable grounds. There is no duty to

retreat before a person threatens or uses force.

....

(d) The threat or use of force against another is not justified if the person

provoked the other individual’s use or attempted use of unlawful force . . . .

Tenn. Code Ann. § 39-11-611 (2006).

By the terms of this statute, the jury was called upon to determine whether the

9

“A person commits theft of property if, with intent to deprive the owner of property, the person

knowingly obtains or exercises control over the property without the owner’s effective consent.” Id. § 39-14-

103(a).

-16-

Defendant had a reasonable belief that he was in “imminent danger of death or serious bodily

injury” and whether he “provoked the . . . use or attempted use of unlawful force” against

him. Id. At the conclusion of the proof, the jury, which has the duty to consider the

testimony, address the credibility of the witnesses, and reconcile any conflicts in the evidence

offered, rejected the Defendant’s claim of self-defense, concluding instead that he had caused

the death of the victim in the perpetration of a robbery.

In this appeal, we must afford the State the strongest legitimate interpretation of the

evidence. Vasques, 221 S.W.3d at 521. George Hammontree testified that he saw the

Defendant pointing a rifle at the victim, who held his hands in the air. Although

Hammontree did not see the actual shooting, he was familiar with weaponry and identified

the first three shots he heard as fired from a .22 caliber automatic weapon. He described the

final shot as having been fired from a weapon with a higher caliber. Other proof established

that a single shot was fired from the victim’s .38 caliber revolver. Hammontree identified

the Defendant as the perpetrator, first from a photographic array and later at trial.

Rebecca Ann Carpenter heard a gunshot, saw the Defendant holding a long gun, and

ran from the scene. She testified that the victim had a wallet when she left his car. The

police conducting the investigation at the scene did not find a wallet in the victim’s

possession. Ms. Carpenter identified the Defendant from a photographic array.

James Blackwell, who was in jail with the Defendant before the trial in this case,

testified that the Defendant admitted pointing a .22 caliber rifle at the victim, demanding his

money, and shooting the victim. Blackwell recalled that the Defendant also claimed to have

taken almost $10,000 from the victim’s pocket. Consistent with the statement he made to

Investigator Still, the Defendant told Blackwell that he fired only after the victim shot first.

In his statement to Investigator Still, the Defendant admitted shooting at the victim

three or four times with a .22 caliber weapon. As indicated previously, however, he claimed

that the victim had fired first and that he was acting in self-defense.

Viewed in the light most favorable to the State, the proof established that the

Defendant shot and killed the victim during the course of a robbery, which satisfies the

elements necessary to support a conviction for felony murder. Because a rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt, the evidence

in the record is sufficient to support the verdict of the jury.

IV.

The Defendant asserts that the trial court committed error by limiting his cross-

examination of three witnesses for the State: George Hammontree, Darlene Thomas, and

-17-

Investigator Still.

Cross-examination is a fundamental right afforded by the Confrontation Clause of the

Sixth Amendment. U.S. Const. amend VI; Delaware v. Van Arsdall, 475 U.S. 673, 680

(1986); see also Tenn. Const. art. I, § 9. A component part of this constitutional protection

is the right to establish bias or to otherwise impeach the credibility of a witness. Rice, 184

S.W.3d at 670; State v. Sayles, 49 S.W.3d 275, 279 (Tenn. 2001); State v. Howell, 868

S.W.2d 238, 252 (Tenn. 1993). The propriety, scope, manner, and control of cross-

examination of witnesses, however, remain within the discretion of the trial court. State v.

Reid, 213 S.W.3d 792, 839 (Tenn. 2006); Rice, 184 S.W.3d at 670. The trial court abuses

its discretion by unreasonably restricting a defendant’s right to cross-examine a witness

against him. Reid, 213 S.W.3d at 839; Rice, 184 S.W.3d at 670; Davis v. State, 212 S.W.2d

374, 375 (Tenn. 1948).

When a defendant is denied the right to conduct an effective cross-examination, the

conviction will stand only if the violation is deemed harmless beyond a reasonable doubt.

Rice, 184 S.W.3d at 670; Sayles, 49 S.W.3d at 280; see also State v. Rodriguez, 254 S.W.3d

361, 371 (Tenn. 2008) (discussing the harmlessness standard for constitutional errors).

Whether an error is harmless depends upon various factors, including “‘the importance of the

witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the testimony of the witness

on material points, the extent of cross-examination otherwise permitted, and, of course, the

overall strength of the prosecution’s case.’” Rice, 184 S.W.3d at 670-71 (quoting Van

Arsdall, 475 U.S. at 684).

With these principles in mind, we turn to the specific complaints made by the

Defendant regarding limitations on his cross-examination of the State witnesses.

A. George Hammontree

The Defendant argues that the trial court unreasonably restricted his cross-

examination of George Hammontree by denying his request to inform the jury that the State

dismissed forgery and theft charges against Hammontree two days after he testified at the

trial of this case. When the State dismissed the charges against Hammontree, the Defendant

asked permission to inform the jury of the dismissal either through judicial notice or by

calling a court official to testify.10 The State acknowledged that the charges against

Hammontree had been dismissed, but asserted that the dismissal was not in exchange for his

testimony in this case. The trial court refused to allow the Defendant to offer proof that the

charges had been dismissed. The Court of Criminal Appeals held that the trial court did not

10

The charges against Hammontree were in the same court as the instant case.

-18-

err, noting that the State and Hammontree specifically denied the existence of any agreement

to dismiss the charges in exchange for the testimony.

Initially, proof suggesting that a witness received or had reason to expect leniency

from the State typically constitutes relevant evidence of bias. See State v. Smith, 893 S.W.2d

908, 924 (Tenn. 1994); Neil P. Cohen et al., Tennessee Law of Evidence § 6.16[2][a], at 6-

174 to -175 (5th ed. 2005); see also United States v. Abel, 469 U.S. 45, 52 (1984) (“Proof

of bias is almost always relevant because the jury, as finder of fact and weigher of credibility,

has historically been entitled to assess all evidence which might bear on the accuracy and

truth of a witness’s testimony.”). Moreover, this Court has previously set out the parameters

of the right to impeach a witness based upon lenient treatment from the State regarding

criminal charges. For example, in Sayles, one of the witnesses for the State, who was in

custody on a charge of aggravated robbery, initially refused to testify, contending that the

defendant had made threats against him and his family. 49 S.W.3d at 277-78 & n.2.

Following a discussion outside of the presence of the jury, the State called the witness, who

provided key, incriminating testimony against the defendant. Id. at 277-78. After the witness

was excused, the trial court granted a request by the State to reduce the bond for a pending

charge against the witness. Id. at 278 & n.3. In addition, the State announced its intent to

reduce the charge against the witness, which it later did. Id. at 278 & n.4. The trial court

denied a request by the defendant to inform the jury of the bond reduction or to make an offer

of proof as to whether the State provided favorable treatment to the witness in exchange for

his testimony. Id. at 278. This Court ruled that the trial court had erred, holding that the

defendant “should have been allowed to examine witnesses to determine whether there was

a connection between the largesse extended to [the witness] and his testimony.” Id. at 279.

Similarly, in Smith, a State witness received a favorable plea bargain on a pending

felony charge soon after coming forth with pertinent information. 893 S.W.2d at 923. The

trial court did not allow the defendant to cross-examine the witness about possible bias. Id.

This Court ruled that the trial court should not have restricted the defendant from addressing

the issue on cross-examination. Id. at 924.

The same reasoning applies here. Two days after Hammontree provided incriminating

evidence in this case, the State dismissed the forgery and theft charges against him. The

dismissal of the charges was relevant evidence of bias, particularly in light of its timing. The

fact that the State and Hammontree denied the existence of a connection between his

testimony and the dismissal of the charges did not justify the exclusion of contrary evidence

for the jury to weigh in evaluating the credibility of that testimony. See Sayles, 49 S.W.3d

at 279-80 (finding that evidence that the State recommended a bond reduction out of concern

for the safety of the witness rather than in exchange for his testimony did not justify the

exclusion of contrary proof). The trial court erred by failing to afford the Defendant the

-19-

opportunity to impeach Hammontree by introducing evidence of bias.11

In our view, however, this error qualifies as harmless beyond a reasonable doubt. In

his recorded statement to Investigator Still, the Defendant acknowledged that he shot the

victim. He informed Blackwell that he had shot and robbed the victim. Although the

testimony provided by Hammontree was important to the State, he was not the only eye

witness. Ms. Carpenter also testified that she saw the Defendant pointing a long-barrel gun

at the victim, which contradicted the Defendant’s testimony that he fired a pistol at the victim

in self-defense. Moreover, despite the improper exclusion of the dismissal of the charges

against Hammontree, the trial court did not otherwise unduly restrict the Defendant from

impeaching his credibility. For example, the trial court permitted the Defendant to question

Hammontree about his various prior convictions as well as the pending forgery and theft

charges, including whether the State had promised him favorable treatment as to those

charges in exchange for his testimony. Furthermore, because the Defendant did not offer any

other evidence of a possible connection between the dismissal of the charges against

Hammontree and his testimony, the evidence excluded as a result of the error was limited to

the fact of the dismissal. Cf. Sayles, 49 S.W.3d at 279-80 (noting that error deprived the

defendant of the opportunity to examine witnesses regarding a possible connection between

the leniency afforded the witness and his testimony). In our view, the improper exclusion

of evidence of the dismissal qualified, under these circumstances, as harmless beyond a

reasonable doubt. See Rodriguez, 254 S.W.3d at 371; Rice, 184 S.W.3d at 670-71.

B. Darlene Thomas

The Defendant next contends that the trial court unreasonably restricted the cross-

examination of Darlene Thomas regarding her contact with Bennie Pruitt, who was

Hammontree’s aunt and the purported victim in the forgery and theft charges against him.

During the cross-examination of Ms. Thomas, the Defendant attempted to ask her about any

efforts she had made to get Pruitt to withdraw the charges in exchange for Hammontree’s

11

The fact that the Defendant sought to show the dismissal of the charges through extrinsic evidence

rather than further examination of Hammontree does not alter our conclusion. Tennessee Rule of Evidence

616 provides that “[a] party may offer evidence by cross-examination, extrinsic evidence, or both, that a

witness is biased in favor of or prejudiced against a party or another witness.” In addition, we have

previously acknowledged that the right to impeach the credibility of a witness encompasses the examination

of witnesses other than the witness whose credibility is at issue. See, e.g., Sayles, 49 S.W.3d at 279 (noting

that the defendant should have been permitted to “examine witnesses” to introduce evidence that the witness

for the State was biased); Howell, 868 S.W.2d at 252 (holding that the trial court erred by refusing to allow

the defendant to impeach the former recorded testimony of his co-defendant with evidence that the co-

defendant later recanted that testimony); see also State v. Reid, 882 S.W.2d 423, 428-29 (Tenn. Crim. App.

1994) (holding that the trial court erred by not allowing the defendant to impeach a witness through cross-

examination and extrinsic evidence).

-20-

testimony in this case. The State objected to this line of questioning, and the trial court

sustained the State’s objection in part, allowing the Defendant to ask Ms. Thomas about her

relationship with Hammontree but holding that any further questioning on the issue would

have to be directed toward Hammontree. In response to the cross-examination, Ms. Thomas

contended that she did not have a relationship with Hammontree but acknowledged that she

had contacted Pruitt upon finding out that she was Hammontree’s aunt. The Defendant did

not address the issue during his subsequent examination of Hammontree. The Court of

Criminal Appeals found that the trial court had not erred, noting in particular the Defendant’s

failure to follow up on this issue during Hammontree’s testimony.

We also hold that the trial court’s restriction on the cross-examination did not amount

to an abuse of discretion. Because the defense primarily sought to establish that

Hammontree, rather than Ms. Thomas, provided incriminating testimony against the

Defendant as part of some arrangement to secure the dismissal of his own criminal charges,

the trial court did not act unreasonably by directing that the matter be addressed during

Hammontree’s testimony. Under these circumstances, there was no error.

C. Investigator Still

The Defendant further argues that the trial court committed error by allowing the State

to play a redacted recording of his interview with Investigator Still without permitting

questions about the redacted portions of the recording.

During the interview, the Defendant admitted shooting the victim, but maintained that

he did so in self-defense. During a redacted portion of the recording, Investigator Still told

the Defendant that

there is one spectrum where you could spend the rest of your life in jail . . . and

then you’ve got stuff on the other end, and it just depends on what you tell me.

But it’s a big difference between cutting a little bit of time and spending the

rest of your life in jail.

In another redacted portion, Investigator Still said to the Defendant,

This is your life, and this is a life decision that you’ve got to make . . . . [I]f

you don’t need to spend the rest of your life in jail, I don’t want to be part of

that, but you’ve got to be straight up with me, and you’ve got to be

truthful . . . . I know the guy shot at you.

The trial court allowed the State to redact these portions of the recording pursuant to

Tennessee Code Annotated section 40-35-201(b) (2010), which provides that in non-capital

-21-

criminal cases, “the judge shall not instruct the jury, nor shall the attorneys be permitted to

comment at any time to the jury, on possible penalties for the offense charged.” While the

Defendant had been provided with an unedited copy of the recording, the trial court denied

his request to review the redacted version of the recording before it was played for the jury.

The trial court also refused to allow the Defendant to cross-examine Investigator Still about

the redactions, explaining that the confession was voluntary and “[w]e’re not going into

punishments.” On redirect examination, however, Investigator Still acknowledged that he

used the technique of “minimilization,” which he described as “making light” of the incident

in question, as well as the technique of telling the suspect that he had information about the

shooting that in reality he did not have. To illustrate, Investigator Still admitted telling the

Defendant during the interrogation that he knew the victim had shot at the Defendant first.

The Court of Criminal Appeals held that Tennessee Code Annotated section 40-35-

201(b) did not provide a basis for redacting the recording and that the trial court erred by not

allowing the Defendant to explore the redacted portions of the recording during his cross-

examination of Investigator Still. Nevertheless, the Court of Criminal Appeals found the

error to be harmless, primarily based on Investigator Still’s testimony. Echols, 2011 WL

2418737, at *21.

We agree with the Court of Criminal Appeals. In our view, the trial court did abuse

its discretion by restricting the cross-examination of Investigator Still as to the redacted

portions of the interview. Tennessee Code Annotated section 40-35-201(b) merely prohibits

trial judges, the State, and the defense from commenting to the jury “on possible penalties

for the offense charged.” Nothing in the text of section 40-35-201(b) prohibits the

introduction of a recorded statement by a witness, made prior to any charge, that a suspect

could face “life in jail” as opposed to “a little bit of time” depending on what he tells the

interrogating officer. The Court of Criminal Appeals properly ruled, therefore, that section

40-35-201(b) neither mandated nor justified limitations on cross-examination.12

Nor did the trial court’s prior ruling on the voluntariness and admissibility of the

statement justify restricting the cross-examination. While the trial court’s role is to decide

the voluntariness of a defendant’s statement in determining its admissibility as evidence at

trial, see Mann, 959 S.W.2d at 528, that does not alter the function of the jury to consider the

truthfulness of a statement made to the police. Pursley, 550 S.W.2d at 950. “To aid them

in resolving these questions the jury may hear evidence of the circumstances under which the

confession was procured.” Id. (quoting Wynn v. State, 181 S.W.2d 332, 333 (Tenn. 1944));

see also Crane v. Kentucky, 476 U.S. 683, 690-91 (1986) (holding that exclusion of evidence

12

The trial court also should have allowed the Defendant to review the redacted version of the

recording prior to it being played for the jury.

-22-

showing the circumstances of a defendant’s confession violated his constitutional right to

present a complete defense). By limiting the cross-examination of Investigator Still in this

manner, the trial court committed error.

As noted by the Court of Criminal Appeals, however, Investigator Still’s testimony

on redirect examination made the jury aware that he had employed interrogation techniques

designed to elicit an incriminating statement. More importantly, the statements made by the

Defendant during his interrogation were entirely consistent with the theory of self-defense

he argued at trial. Cf. Crane, 476 U.S. at 691 (reasoning that, because the accused’s defense

was that he did not commit the offense charged and falsely confessed, “introducing evidence

of the physical circumstances that yielded the confession was all but indispensable to any

chance of [his defense] succeeding”). Under these circumstances, the unwarranted restriction

on the cross-examination of Investigator Still qualified as harmless beyond a reasonable

doubt, having no effect on the outcome of the trial. See Rodriguez, 254 S.W.3d at 371.

Conclusion

Because the collective information of the police established probable cause for the

warrantless arrest of the Defendant, his statement acknowledging that he had shot the victim

and disposed of the weapon was properly admitted at trial. Although the trial court

erroneously limited the cross-examination of two State witnesses, the errors qualified as

harmless beyond a reasonable doubt as other evidence mitigated the effect of these errors.

The judgment is, therefore, affirmed. It appearing that the Defendant is indigent, costs are

taxed to the State of Tennessee.

_________________________________

GARY R. WADE, CHIEF JUSTICE

-23-