State of Tennessee v. Christopher Michael Hooten

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 14, 2013 Session

STATE OF TENNESSEE v. CHRISTOPHER MICHAEL HOOTEN

Appeal from the Circuit Court for Maury County

No. 19679, 19949 Robert L. Jones, Judge

No. M2012-00979-CCA-R3-CD - Filed September 27, 2013

A Maury County jury convicted the Defendant, Christopher Michael Hooten, of first

degree premeditated murder, first degree felony murder, aggravated robbery, and

tampering with evidence. The trial court imposed a life sentence for the merged murder

convictions and concurrent sentences of eight years for the aggravated robbery conviction

and three years for the tampering with evidence conviction. On appeal, the Defendant

contends that: (1) the trial court erred when it denied his motion to suppress evidence

found during the search of his vehicle; (2) the trial court erred when it excluded a

videotaped confession from a co-defendant; and (3) the evidence is insufficient to support

his convictions. After a thorough review of the record and the applicable law, we affirm

the trial court’s judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which C AMILLE R.

M CM ULLEN and R OGER A. P AGE, JJ., joined.

Michael D. Cox, Columbia, Tennessee, for the appellant, Christopher Michael Hooten.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant

Attorney General; Mike Bottoms, District Attorney General; Brent A. Cooper and

Kimberly L. Fields Cooper, Assistant District Attorneys General, for the appellee, State

of Tennessee.

OPINION

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I. Facts

This case arises from the robbery and murder of Harold Wayne Clemons outside the

Wayside Inn in Columbia, Tennessee. For his role in these crimes, a Maury County grand

jury indicted the Defendant for first degree premeditated murder, first degree felony

murder, aggravated robbery, and tampering with evidence. A co-defendant, Marvin

Kelley, was also indicted in these crimes.

A. Suppression Hearing

The Defendant filed a motion to suppress all evidence found during the search of

his vehicle following an investigatory stop. At the time of the suppression hearing, the

Defendant’s case was joined with co-defendant Kelley’s case. We will focus on the facts

pertinent to the Defendant’s case: Scott McPherson, a Columbia Police Department

officer, testified that at around midnight on March 6, 2010, he received a dispatch to be on

the look out (“BOLO”) for assault suspects to be detained for investigation. The possible

suspects were thought to be driving “a maroon square body style Cadillac, occupied by

two white males.” Officer McPherson said that he patrolled the area near the crime scene

looking for a vehicle consistent with the radio dispatch.

Officer McPherson testified that he spoke with Officer Steve Ellis and learned of a

residential address on Bandywood Drive1 where a car matching the description might be

found. Officer McPherson proceeded to the address and did not see any vehicle matching

the description. As he was leaving the area, he observed a vehicle matching the dispatch

description driving toward Bandywood Drive. Officer McPherson turned his vehicle

around and observed the Cadillac turning onto Bandywood Drive. Officer McPherson

followed the vehicle onto Bandywood Drive, where the vehicle parked in the driveway of

a residence. Officer Ellis was also on Bandywood Drive at the time of the stop and

assisted Officer McPherson.

Officer McPherson said that he shined his spotlight into the Cadillac and saw two

men. He said that he recognized the Defendant, the driver, from “previous dealings.”

Officer McPherson proceeded to conduct a “felony stop” by ordering the two occupants

out of the car at gunpoint. The State played portions of a video recording of the stop.

Officers patted down the Defendant, and then handcuffed him and placed him in the back

of Officer Ellis’s patrol car. The same procedure was followed with the passenger,

Marvin Kelley, who was placed in Officer McPherson’s patrol car. Officer McPherson

1

The street name where the Defendant was apprehended is spelled as both “Bandiwood” and

“Bandywood” in the transcripts. For consistency, we spell the street name Bandywood.

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explained the procedure for a felony stop was to detain the suspects until a detective

arrived. Officer McPherson recalled that it took approximately an hour for Detective Reed

to arrive.

Officer McPherson testified that he advised the Defendant of his Miranda rights

twice. The Defendant responded to the officer that he understood his rights and knew his

rights. After the second time the Defendant was advised of his rights, Officer Ellis spoke

with the Defendant. The Defendant stated that he had been at a friend’s house and that

“they” had been “looking for drugs.” Officer McPherson said that the Defendant never

indicated that he wished to invoke his rights.

Steve Ellis, a Columbia Police Department officer, testified similarly to Officer

McPherson about the events leading up to the stop. Officer Ellis said that he had known

the Defendant for over twenty-two years and recognized him as the driver of the Cadillac.

Officer Ellis estimated that the stop was conducted thirty to forty minutes after the BOLO

was issued. The Defendant was placed in the back seat of Officer Ellis’s car and advised

of his Miranda rights. Based upon his prior relationship with the Defendant, Officer Ellis

attempted to speak with the Defendant. The Defendant asked about the stop and “what

was going on.” Ellis described this interaction as follows:

After initially speaking to [the Defendant], right after being

Mirandized, several minutes [went] by. I went back to my car, and opened

the back door and - - and just tried to talk to him, you know, since we were

acquaintances.

I asked him, . . .“You know, it’s me. You know, anything you

wanted to say, you know, now would be the time to do it.”

And . . . [Officer] McPherson had kind of filled him in a little bit on

what had gone on at the Wayside Inn, you know, told him somebody had

been injured pretty severely.

And . . . that second time talking to [the Defendant], he looked up

and . . . he said, “Is he dead?”

And - - and of course, I told him, I said, “You know, . . . I don’t

know. You know I hadn’t been [to the Wayside Inn] and I hadn’t heard

anything about that.”

And somewhere closer to - - right after him saying that, you know, I

kind of felt like he was gong to open up and - - and talk to me.

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And then [Officer] McPherson opened the front seat of my car and

leaned in with his . . . mic and . . . laid it on my - - on the screen. And I

think, you know, [the Defendant] saw that and [ ] then, he said, “No, sir.

I’m done talking to you.”

Officer Ellis testified that, other than taking the Defendant “to the bathroom” two times, he

and the Defendant did not speak about the case again. Officer Ellis said that the

Defendant never requested an attorney.

Officer Ellis testified that he spoke with Detective Reed when he arrived and

informed the detective that both the Defendant and Kelley had been issued Miranda rights.

On cross-examination, Officer Ellis agreed that, when speaking with the Defendant

that night, the Defendant said, “I’m done. I’m done.” Officer Ellis said that he interpreted

this to mean that the Defendant was finished talking to him. He did not interpret this

statement as the Defendant invoking his right to remain silent or requesting an attorney.

Officer Ellis explained that because the Defendant’s statement came after he observed

Officer McPherson place a recording device in the car, Officer Ellis believed the

Defendant meant that he did not want to be recorded.

Jamie Reed, a Columbia Police Department detective, testified that he arrived at the

Wayside Inn at approximately 12:46 a.m. on March 6, 2010. When he arrived, officers on

the scene told him that the victim’s injuries were life-threatening and that the victim was

not expected to survive. Based upon this information, Detective Reed treated the area as a

major crime scene. Detective Reed was in the middle of processing the scene when he

learned that the suspects had been detained. Detective Reed testified that he made an

effort to get to the location where the suspects were detained, Bandywood Drive, as

quickly as possible while maintaining the integrity of the investigatory process at the

scene. Detective Reed said that he arrived at Bandywood Drive at 1:38 a.m.

Detective Reed testified that, upon his arrival at Bandywood Drive, he spoke with

the officers present and learned that each defendant had been advised of his rights. He

said that, because he knew the Defendant “personally,” he proceeded to the police car

where the Defendant was sitting to speak with him. Detective Reed confirmed with the

Defendant that he had been read his Miranda rights, and the Defendant said that he

understood his rights. The detective then asked the Defendant for permission to search his

vehicle. The Defendant responded that police could search the vehicle if he was allowed

to stand beside the car during the search. Detective Reed said that he allowed the

Defendant to observe the search. After a bloody shoe was found in the trunk of the car,

the Defendant said, “Okay, how about this, how about I invoke my rights.” Detective

Reed said that, based on this statement, police discontinued the search and placed the

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Defendant back in the patrol vehicle.

Detective Reed testified that he obtained a search warrant for the Cadillac, and

police continued the search of the car at the police impound lot. He said the car was

registered in the Defendant’s name.

The trial court took the motion under advisement and later issued an order denying

the Defendant’s motion to suppress the evidence found during the search of his vehicle.

The trial court found the Defendant’s statement to Officer Ellis to be an unclear

articulation by the Defendant of an intent to invoke his right to remain silent or right to

counsel. “[The Defendant] stated he understood his rights, and it would logically follow

that if he chose to exercise his right to remain silent or right to counsel, he would clearly

articulate that to Detective Reed or other officers, before the search of the vehicle led to

the bloody shoe, just like he did after the shoe was found.” The trial court found that the

Defendant’s conditional consent to the search was given before he invoked his rights. The

trial court noted that, even if the search was unlawful, the evidence would have been

lawfully obtained under the “inevitable discovery” doctrine.

B. Trial

The parties presented the following evidence at the Defendant’s trial: James Harold

Clemons, the victim’s father, testified that his son was born and raised in Arkansas. He

estimated that the victim had moved to Tennessee with his wife six or seven years earlier.

The victim and his wife had one child together. The couple divorced, but the victim

remained in Tennessee. Clemons recalled that, when he learned of his son’s admission to

Vanderbilt Hospital related to this incident, he immediately drove to Nashville. He

described for the jury seeing the victim in the trauma unit. “It didn’t even look like my

son. His face and his head was about this big around (indicating). He had tubes

everywhere, he couldn’t - - he was basically dead.” The victim was not responsive, so he

was unable to communicate with the victim. Clemons said that he remained with his son

at the hospital until his son’s death the following day.

April Drew, the victim’s ex-wife, testified that she and the victim divorced in 2007

when their daughter was approximately two and a half years old. Drew said that, after the

divorce, the Defendant remained active in his daughter’s life. Drew acknowledged that

the victim drank “a beer or two occasionally” but said that she had never known him to use

illegal drugs. Drew said that the victim always carried, in his front, left pants pocket, “a

little plastic thing for photos” and his money in a clip. She said that the victim suffered

from back pain and kept Lortab and an anti-inflammatory on his person at all times. The

victim also took a medication for depression. She said that he carried those medications in

a “kidney shaped pill container” in his pocket. Drew identified the victim’s pill container

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in a photograph of a pill container found near the victim at the crime scene.

Drew testified that the victim spent the night before this incident at her home with

their daughter. She described him as “happy” and playing “beauty shop” with their

daughter. The following morning, they ate breakfast together, and then, at around noon,

she drove the victim “home.” Drew recalled that the victim called her on the telephone at

around 5:00 p.m. to invite her out for a drink, but she was unable to go. The following

day, Drew received a phone call from one of the victim’s roommates asking if Drew had

seen the victim. Drew said that she became concerned upon learning that the victim had

not returned to his home the previous night. She had heard about an unidentified man

being air-lifted to Vanderbilt Hospital for treatment, so she began seeking the identity of

that man. Ultimately, she went to Vanderbilt Hospital and identified the victim for police.

She described the victim’s eyes as black and his head and face as severely swollen.

Sandra Ragsdale testified that the victim had rented a room in her home for

approximately two years. Ragsdale described the victim as a “very good tenant” and as

“respectful” toward her. Ragsdale recalled that, on the day of these events, the victim had

been drinking “a little bit.” He wanted to go out to a bar, and Ragsdale attempted to

convince him to stay at home instead. When the victim persisted, Ragsdale gave him her

cellular phone to carry with him in case he needed someone to pick him up. Ragsdale

identified the cellular phone that she provided the victim that night. Later that night,

Ragsdale attempted unsuccessfully to contact the victim by phone. When the victim did

not answer the phone, she grew concerned. She said that the victim did not drink

frequently, and it was unlike him to not call and let her know he was okay. Ragsdale said

that she did not see her cellular phone again until she was in court.

Mark Dugger testified that he rented a room from Ragsdale during the time the

victim lived in the home. Duggar said that, on the day of these events, he drove the victim

to the store to buy beer. Duggar observed the victim counting his money, approximately

$100.00, before he purchased the beer. The two men returned to the house where the

victim drank beer and grilled. Later that evening, the victim went to a bar. Duggar said

that he called the victim at around 9:30 p.m. to see if the victim needed a ride home, but

the victim did not answer the phone. Duggar called the cellular phone a few times more

before going to bed, but the calls were unanswered. The next morning, Duggar began

placing phone calls to the jail, hospital, and friends in an attempt to find the victim.

Dawn Scribner testified that the last time she saw the victim was at a cookout at

Ragsdale’s house. After eating, the victim asked Scribner to drive him to Huck’s Bar and

Grill, and Scribner agreed. Scribner recalled that the victim had “around $70.00,” and she

gave him an additional $20.00 “in case he [ ]need[ed] to eat.”

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Robert Reed testified that he did not know the victim or the Defendant. He said

that, on the night of March 6, 2010, he had a “few beers” at the Wayside Inn and then went

“out back” to his friend’s motor home to lay down on the couch. As he was lying on the

couch, he heard a commotion outside. He opened the door to the motor home and saw a

man lying on the ground, who was bleeding from his ears and head. Reed described the

man as lying on his side and “gurgling.” Reed looked around and saw two men, one

“large” and the other “small,” walking away from him and toward an “early model ‘90s”

burgundy Cadillac. Reed said that he went back inside the motor home, put on his boots,

and then walked to the Wayside Inn to have someone call 9-1-1. He then returned outside

to check on the man lying on the ground. He said that the men who had been walking

toward the Cadillac were “long gone” by the time he returned outside.

Bill Denton, a Columbia Police Department officer, testified that he was

supervising the third shift on March 6 and 7, 2010. He responded to a call from the

Wayside Inn where a man had been found lying on the ground. Lieutenant Denton

described for the jury the computer-aided dispatch (“CAD”) system employed at the police

department to log and track dispatch calls and police response. He identified the CAD

report from the Wayside Inn call. The lieutenant testified that the report showed that the

first unit was dispatched at 11:55 p.m. Lieutenant Denton said that he arrived on the scene

at 11:58 p.m., and the victim was transported to the hospital by 12:36 a.m. Based on the

severity of the injuries, Lieutenant Denton determined that a detective would be needed,

and Detective Reed arrived at the scene at 12:46 a.m. Lieutenant Denton testified that the

CAD report showed that Officer Ellis conducted a stop of the Defendant’s vehicle at 12:42

a.m.

Sarah Howell, a Columbia Police Department officer, testified that she responded

to a report that a male had been assaulted and thrown out of a vehicle at the Wayside Inn.

When she arrived, she found an unconscious, white male lying face down. She noticed a

large laceration on the back of the victim’s head and blood coming from his ear. She felt

for a pulse. When she could not discern a pulse, she and Lieutenant Denton turned the

victim over to begin administering CPR. Officer Howell recalled that EMS and the fire

department arrived as they were about to begin CPR and assumed medical care of the

victim. She said that another officer searched the victim for identification but found none.

Jason Terlecki, a Columbia Police Department officer, testified that he responded to

a call from the Wayside Inn. He said that he and Lieutenant Denton arrived at about the

same time and that both men walked toward a motor home and found an unconscious,

white male lying on the ground. Officer Terlecki searched the man for some form of

identification but found none. He found a small knife in the victim’s back pocket and

“some money” in the man’s right shirt pocket. Officer Terlecki also observed a capsule

with various pills lying next to the victim’s head.

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Officer Scott McPherson, a Columbia Police Department officer, testified that,

based upon the dispatch call about the BOLO for a “late ‘90s model Cadillac,” he

conducted a felony stop of a vehicle the Defendant was driving on March 7, 2010. The

officer testified consistently with his account of the events during the suppression hearing.

Officer McPherson also identified the recording taken with the video camera in his

vehicle. The State played the video for the jury while Officer McPherson narrated.

Officer McPherson recalled that both the Defendant and his passenger, Kelley, exited the

car through the driver’s side door. Kelley told police that the passenger side door would

not open.

Officer McPherson said that, while the Defendant was in the back of the patrol car,

he noticed the Defendant removing his shoes. On the video, there is an exchange between

Officer Ellis and the Defendant during which Officer Ellis asks the Defendant why he

removed his shoes, and the Defendant responds that the shoes were three sizes too big.

Officer McPherson testified that, after Detective Reed arrived, Detective Reed

asked the Defendant for permission to search his vehicle. The Defendant responded that

“he’d allow [Detective Reed] to search as long as he went up there with [Detective Reed].”

Officer McPherson testified that he participated in the search of the vehicle and found a

size 13 shoe with blood on it. At the time, the Defendant was standing approximately ten

to fifteen feet away from Officer McPherson. The Defendant was returned to the back

seat of the police car. He was in the vehicle alone but a microphone that Officer

McPherson had earlier placed in the car was still recording. On the video recording, the

Defendant made a statement. Officer McPherson said that, “[The Defendant] said that

nobody had done nothing, it was a dog that cut his leg that bled all over that shoe.”

Officer Steve Ellis, a Columbia Police Department officer, testified that he

participated in the investigation involving the Defendant on the night of March 6, 2010.

Officer Ellis’s testimony was consistent with his testimony at the suppression hearing

regarding the events of that night. Officer Ellis testified that he had known the Defendant

for many years and recognized the description of the vehicle issued in the BOLO as

similar to the Defendant’s vehicle. Officer Ellis drove by the Defendant’s residence, and

the Defendant drove up while Officer Ellis was still on the street. Officer Ellis and Officer

McPherson conducted a felony stop and detained the Defendant and Kelley in separate

police vehicles.

Officer Ellis testified that the Defendant repeatedly asked the officer why he had

been stopped and what was “going on.” Officer Ellis told the Defendant that a detective

was on the way and that if there was anything the Defendant wanted to talk about, now

would be a good time. Officer Ellis said the Defendant hesitated and then asked, “is he

dead?” Officer Ellis told the Defendant he did not know. Officer McPherson then placed

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a recording device inside the car, and the Defendant “clammed up at that point.” Officer

Ellis recalled that Detective Reed arrived soon thereafter and questioned the Defendant

and Kelley. Officer Ellis stated that the Defendant never admitted to him any involvement

in the incident at the Wayside Inn.

Officer Ellis testified that the Defendant removed his shoes while in the back seat

of the police car. When asked about his removal of his shoes, the Defendant said the

shoes were too big. Officer Ellis stated that, while waiting for Detective Reed to arrive, he

took the Defendant out of the back seat of the police car twice to “use the restroom.”

Officer Ellis accompanied the Defendant at all times while outside the vehicle and never

observed the Defendant drop or throw anything.

After leaving the scene of the stop, Officer Ellis drove the Defendant to the

detectives’ office. After they arrived, the Defendant indicated he needed to go the

bathroom “bad.” Officer Ellis interpreted this to mean that the Defendant needed to have a

bowel movement. Based on this comment, Officer Ellis took off the Defendant’s

handcuffs and let him go inside the bathroom alone. The Defendant had been searched for

weapons but had not yet been strip-searched. After several minutes, the Defendant

emerged from the bathroom, and Officer Ellis handcuffed him and took him back to the

lobby. Officer Ellis said that he noticed “a considerable amount of water inside the

bathroom” after the Defendant finished in the bathroom. He said that the Defendant “was

agitated,” so Officer Ellis thought the Defendant “maybe purposely made a mess.”

On cross-examination, Officer Ellis testified that, after Officer McPherson advised

the Defendant of his Miranda rights, he told the Defendant that police were investigating a

possible homicide. Officer Ellis agreed that Officer McPherson informed the Defendant

of the investigation before the Defendant asked Officer Ellis if the victim was dead.

Randy Blackburn testified that he worked as a plumber. He recalled that, on March

16, 2010, he worked at the Columbia detective’s office unclogging a toilet in the men’s

bathroom. Blackburn said that he extracted an object from the toilet that appeared to be

“personal items, man’s name, like, insurance card or something like that, with Wayne

Clemons on it.” Based on its size, he initially thought the retrieved item was a calculator,

approximately one half inch thick. He placed no significance on the item and because it

was “dirty” he “tossed it in the trash can.” Shortly thereafter, an employee came in to the

bathroom and asked about the clog. Blackburn indicated that he put the item in the trash

can.

Jeremy Alsopp, a Columbia Police Department officer, testified that, in March

2010, the toilet in the men’s restroom had not been operating correctly for approximately

ten days when, on March 16, 2010, a plumber came to repair the toilet. Lieutenant Alsopp

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recalled that he was sitting at his desk when he overheard the plumber ask who was

“Harold Clemons.” Recognizing the victim’s name, Lieutenant Alsopp got up from his

desk and went to the doorway of the men’s restroom. He saw an item in the toilet covered

in feces. He retrieved gloves and removed the item from the toilet. He described the item

as a “small black non-folding, clear covered wallet.” He wiped it off with paper towels

and saw an identification card with the victim’s name and photograph on it. There were

additional cards, such as prescription cards, behind it.

Mark Craig, a Columbia Police Department detective, testified that on March 7,

2010, his supervisor requested he assist with a search warrant for the Defendant’s vehicle.

Detective Craig said that the focus of the search was to collect DNA samples and

fingerprints. Detective Craig identified photographs he had taken of the vehicle.

Detective Craig identified a shoe and a tire tool that were removed from the Defendant’s

trunk. He said that the men’s shoe taken from the trunk was a left, size 13 shoe. Inside

the compartment of the vehicle, a camouflage wallet containing the Defendant’s driver’s

license was found in the console area. The car registration, indicating the owner of the

vehicle as the Defendant, was found in the glove box.

Detective Craig testified that, approximately eleven days after this initial search,

Detective Reed asked him to check the operating condition of the vehicle’s doors and

windows. Detective Craig tested the doors and windows and found that the passenger side

windows could not be opened, but all of the doors worked from the inside and the outside

of the vehicle.

Andre Martin, a Columbia Police Department officer, testified that, on April 1,

2010, he went to Vanderbilt Medical Center and retrieved personal items found on the

victim’s person while he was treated at the hospital. From the hospital, Lieutenant Martin

retrieved $31.10, and from the Vanderbilt Police Department, he retrieved the victim’s

pocket knife.

Jamie Reed, a Columbia Police Department detective, testified that he was assigned

to investigate the case involving the Defendant. Sergeant2 Reed said that he was notified

of the case shortly after midnight on March 7, 2010. He arrived at the scene

approximately twenty-three minutes later where he was briefed by officers on the scene.

He said that, at this time, the victim had already been transported to the hospital and the

scene secured.

2

At the time of the trial, Jamie Reed served as a sergeant over juvenile administrations for the Columbia

Police Department. Thus, in the trial testimony, we refer to him by his most current title, Sergeant.

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Sergeant Reed testified that, after surveying the scene, he determined that he would

process the scene himself because it was a small area. Sergeant Reed photographed the

crime scene and collected a pill container with loose pills found near the victim for

analysis. DNA samples from the blood puddles were taken and also submitted for testing.

Sergeant Reed testified that, while processing the scene, he received information

that a suspect vehicle had been stopped and the occupants detained. At this point,

Sergeant Reed was “more than half way” through with his work at the scene, so he

completed his work at the scene before proceeding to Bandywood Drive. Sergeant Reed

talked with officers at the Bandywood Drive scene before talking to either suspect. After

confirming with the Defendant that he had been advised of the Miranda rights, Sergeant

Reed spoke with him. The Defendant agreed to allow police to search the vehicle if the

Defendant would be permitted to stand next to Sergeant Reed and observe the search.

Sergeant Reed agreed, and the Defendant stood next to the detective by the Cadillac while

two other officers searched the vehicle. Officer McPherson walked over to Sergeant Reed

and whispered in his ear that “there’s a bloody shoe in the trunk.” Immediately, the

Defendant stated that he wanted to invoke his rights. The police officers ceased the

search, and the Defendant was returned to the back of a police car.

Sergeant Reed testified that later, at the detective’s office, he collected the

Defendant’s and Kelley’s clothing and personal effects. He explained that he checked the

Defendant’s clothing for presumptive blood or DNA with chemical and lighting tests and

that he did not find anything warranting further testing at the Tennessee Bureau of

Investigation (“TBI”). Kelley’s pants, however, appeared to have dried blood on them and

were sent to the TBI for further testing. Sergeant Reed said that, after conducting

preliminary testing on the tire tool found in the trunk of the Defendant’s vehicle, he did not

send the tire tool to the TBI for further testing. A cellular phone that was collected from

Kelley at the time of the arrest was later determined to be the victim’s landlord’s phone.

Sergeant Reed said that the victim’s clothing and belongings were also collected as

evidence.

On cross-examination, Sergeant Reed confirmed that none of the clothing the

Defendant wore at the time of arrest had blood on it. Sergeant Reed said that the

Defendant’s fingerprints were not found on any item collected in this case. The

Defendant’s DNA was not found on the victim’s clothing, the bloody shoe found in the

trunk of the Cadillac, or the pill container found lying near the victim. Sergeant Reed

agreed that Kelley was over six feet tall and weighed approximately three hundred pounds

while the Defendant was about five feet, five inches tall and weighed “100-some-odd

pounds.”

Brent Trotter, a TBI forensic scientist, testified as an expert witness in the field of

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forensic chemistry and analysis. Agent Trotter examined the pills in the plastic container

found near the victim at the Wayside Inn. He determined that the pills were not controlled

substances and were Motrin, Buspar, Flexeril, and Mevacor. Agent Trotter said that he

tested “a loose pill” and determined that the pill contained Hydrocodone, a Schedule II

drug.

Charles Hardy, a TBI forensic scientist, testified as an expert witness in the field of

serology and DNA analysis. Agent Hardy testified that police provided him with DNA

samples from the Defendant, Kelley, and the victim. He used the samples for comparison

with items of evidence submitted in this case. He said that blood spatter found on the pill

container matched the victim’s DNA. Agent Hardy also took a sample from a blood stain

found on the instep of a Nike shoe that was recovered from the Defendant’s vehicle

pursuant to a search warrant. The blood from the shoe matched the victim’s DNA. A

swabbing inside the shoe for epithelial cells produced a profile matching Kelley’s DNA

standard. Agent Hardy said that he took samples from two other areas inside the shoe but

that the DNA was either insufficient or degraded.

Agent Hardy testified that he also tested a reddish-brown stain on Kelley’s jeans.

The DNA sample extracted from this stain matched the DNA sample for the victim.

Agent Hardy also tested the blood stains on the shoe found in the trunk of the Defendant’s

vehicle during the consent search. The DNA profile matched the DNA sample for the

victim. Agent Hardy said that he swabbed the inside of the shoe and the DNA profile

obtained was consistent with a mixture of genetic material from at least two individuals.

He said that Kelley was the major contributor of the material and that neither the victim

nor the Defendant could be excluded as the minor contributor to the mixture.

On cross-examination, Agent Hardy confirmed that none of the profiles obtained

matched the Defendant’s DNA profile.

Adele Lewis, a medical examiner, testified as an expert witness in the field of

forensic pathology. After explaining an autopsy procedure to the jury, Dr. Lewis spoke

specifically about her findings related to the victim’s autopsy. Dr. Lewis said that the

victim had multiple injuries to his head, two black eyes, and “bloody fluid” coming out of

his nostrils and ears. The victim also had a patterned contusion or bruise on the lower

portion of his back. She said that a “patterned contusion” is a bruise that “was left by an

object that leaves a certain pattern.” The pattern on the victim was two parallel purple

lines. The victim also had further bruising on his arms and right thigh.

Dr. Lewis testified about the internal injuries the victim sustained. She said that she

found extensive bruising on the left side of the victim’s scalp and bruises on the brain.

She noted a significant amount of swelling to the brain and a fracture at the base of his

12

skull. Dr Lewis found “bleeding over the surfaces of the brain and fractures of his third,

fourth and sixth ribs.” She explained that fractures to ribs are generally caused “by some

sort of blunt force injury.” Based upon the victim’s injuries, Dr. Lewis estimated that the

victim sustained multiple “blows.” She also opined that a tire tool, like the one found in

the Defendant’s Cadillac, could have caused the skull fracture and the patterned bruising

on the victim’s back. Dr. Lewis testified that the cause of death was blunt force injury to

the head and the manner of death was homicide.

Burnace McDonald testified that he first met the Defendant and Kelley in the

Maury County jail waiting for transportation to court. McDonald explained that four or

five days earlier, he had been charged with felony DUI. While waiting, the Defendant was

seated next to McDonald, and Kelley was standing next to the Defendant. McDonald and

the Defendant began conversing, and the Defendant told McDonald that he was in jail for

assault. McDonald asked the Defendant if “he just kicked the man.” The Defendant

responded, “no, I got my licks in, too.” McDonald said that he interpreted this to mean

that the Defendant hit or punched the victim in addition to kicking him. The Defendant

further told McDonald that he was “going to say he didn’t get out of the car . . . because

there was no sense in both of them getting in trouble for the same thing.”

The State rested its case, and the Defense called co-defendant Marvin Wendell

Kelley, Jr. to testify. In the absence of the jury, Kelley invoked his Fifth Amendment

Right and refused to testify. His attorney explained that Kelley’s case was being appealed,

and, therefore, he had advised his client to invoke his rights.

Wes Bryant testified that he initially represented the Defendant in general session

court. He handled the Defendant’s preliminary hearing held on March 17. The court

dockets from that date reflect that Burnace McDonald was also scheduled to appear in

court on March 17. Bryant recalled that the courtroom was “packed” on March 17, and

therefore, he had no recollection of whether McDonald was in the courtroom during the

Defendant’s hearing.

Linda Orr, the Defendant’s mother, testified that for Christmas in 2009, she gave

her son a pair of size nine tennis shoes.

Based upon this evidence, the jury convicted the Defendant of first degree

premeditated murder, first degree felony murder, aggravated robbery, and tampering with

evidence. The trial court merged the murder convictions and imposed a life sentence and

concurrent sentences of eight years for the aggravated robbery conviction and three years

for the tampering with evidence conviction. It is from these judgments that the Defendant

now appeals.

13

II. Analysis

The Defendant asserts that: (1) the trial court incorrectly denied his motion to

suppress evidence found during the search of his vehicle; (2) the trial court erred when it

excluded a videotaped confession from his co-defendant; and (3) the evidence is

insufficient to support his convictions.

A. Motion to Suppress

The Defendant asserts that the trial court erred when it denied his motion to

suppress. The Defendant’s central issue appears to be whether Detective Reed’s request to

search the Cadillac was improper. The State responds that the Defendant had not invoked

his right to silence at the time of the request, and, even if he had, a request from law

enforcement for consent to search is not interrogation.

In its written ordering denying the motion to suppress, the trial court made the

following findings:

Officer Ellis testified that he did not interpret what [the Defendant]

said to him as [the Defendant] invoking his Miranda rights. The statement

occurred immediately after Officer MacPherson [sic] placed a recording

devise [sic] in the vehicle, and Officer Ellis took the statement to mean that

[the Defendant] did not want to make a statement that was being recorded.

The Court finds that [the Defendant]’s statement did not invoke his

right to remain silent or his right to counsel. [The Defendant]’s statement

was not a “clear articulation.” [The Defendant] stated he understood his

rights, and it would logically follow that if he chose to exercise his right to

remain silent or right to counsel, he could clearly articulate that to Detective

Reed or other officers, before the search of the vehicle led to the discovery

of a bloody shoe, just like he did after the shoe was found.

After specifically finding that the bloody shoe was not the fruit of an illegal search, the

trial court went on to state that, even were the bloody shoe the fruit of an unlawful search,

the evidence would be admitted under the “inevitable discovery” doctrine. The order

states, “Discovery of the bloody shoe was inevitable incident to arrest.”

Our standard of review for a trial court’s findings of fact and conclusions of law on

a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).

Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld

unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing

14

party in the trial court is afforded the ‘strongest legitimate view of the evidence and all

reasonable and legitimate inferences that may be drawn from that evidence.’” State v.

Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864

(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court’s application of the

law to the facts, without according any presumption of correctness to those conclusions.

See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295,

299 (Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility of the

witnesses, determine the weight and value to be afforded the evidence, and resolve any

conflicts in the evidence. Odom, 928 S.W.2d at 23. In reviewing a trial court’s ruling on a

motion to suppress, an appellate court may consider the evidence presented both at the

suppression hearing and at the subsequent trial. State v. Henning, 975 S.W.2d 290, 299

(Tenn. 1998).

The Fifth Amendment to the United States Constitution and Article I, Section 9 of

the Tennessee Constitution protect a defendant from compelled self-incrimination.

Miranda v. Arizona bars the admission of any statements elicited from a defendant through

police initiated custodial interrogation unless the defendant, prior to making the statement,

was warned of certain constitutional rights and knowingly waived those rights. 384 U.S.

436, 444 (1966). These procedural safeguards require that police officers advise a

defendant of his or her right to remain silent and of his or her right to counsel before they

may initiate custodial interrogation. State v. Sawyer, 156 S.W.3d 531, 534 (Tenn.2005).

If the suspect indicates in any manner that he wishes to remain silent, custodial

interrogation must cease. State v. Huskey, 177 S.W.3d 868, 878 (Tenn. Crim. App. 2005).

The record in this case shows that the Defendant was placed in the back seat of a

police car and issued Miranda warnings twice. He confirmed that he knew and

understood his rights. Officer Ellis, who had known the Defendant for many years,

approached the Defendant to talk. While he and the Defendant spoke, Officer McPherson

opened the car door and placed a recording device inside the car. After seeing McPherson

place the recording device, the Defendant told Ellis, “No, sir. I’m done talking to you.”

Officer Ellis perceived this to mean that the Defendant did not want the conversation

recorded. Officer Ellis did not speak any further with the Defendant about the case. When

Detective Reed arrived, he confirmed with police officers present at the scene and the

Defendant that the Defendant had been advised of his Miranda rights. After confirming

with the Defendant that he had been advised of and understood his Miranda rights,

Detective Reed asked the Defendant if police could search his vehicle. The Defendant

agreed to a search of his vehicle if he were allowed to stand near the vehicle and watch

police officers during the search. Detective Reed granted this request, and, after police

found a bloody shoe in the trunk of the car, the Defendant invoked his rights and the

search of the vehicle ceased.

15

The Defendant contends that Detective Reed “failed to scrupulously honor [the

Defendant’s right to remain silent.” He maintains that Detective Reed “crossed the line”

when he asked the Defendant for permission to search the vehicle. The State correctly

points out that a request for consent to search is not an interrogation, nor is the

Defendant’s response an incriminating statement for Miranda purposes. State v. Kyger,

787 S.W.2d 13, 24 (Tenn. Crim. App. 1989). This Court has explained:

Generally, “[a] consent to a search is not the type of incriminating

statement toward which the fifth amendment is directed [because i]t is not

in itself ‘evidence of a testimonial or communicative nature.’ ” United

States v. Lemon, 550 F.2d 467, 472 (9th Cir. 1977) (quoting Schmerber v.

California, 384 U.S. 757, 761(1966)). Therefore, while “the Fifth

Amendment’s protection against self-incriminating statements may limit

further interrogation once a person in custody invokes his right to counsel

[or his right to remain silent], . . . there is no similar prohibition on securing

a voluntary consent to search for physical evidence.” United States v.

Knight, 58 F.3d 393, 397 (8th Cir. 1995) (citing Cody v. Solem, 755 F.2d

1323, 1330 (8th Cir. 1985)). This is because “Miranda has to do only with

police conduct reasonably likely to elicit an incriminating response, while

requests made to a defendant by one seeking consent to search . . . do not

constitute further questioning, or the functional equivalent of further

questioning.” Wayne R. LaFave, Search and Seizure, § 8.2(k) (4th ed.

2004) (footnotes and internal quotations omitted). “Miranda warnings are

not constitutional rights in themselves, but are merely standards designed to

safeguard the Fifth Amendment privilege against self-incrimination.” Smith

v. Wainwright, 581 F.2d 1149, 1152 (5th Cir. 1978). However, a consent to

search, in and of itself, is not evidence which tends [to] incriminate; a

search pursuant to consent may disclose incriminating evidence, but that

“evidence is real and physical, not testimonial.” Cody, 755 F.2d at 1330.

State v. Steven Bernard Sydnor, No. M2007-02393-CCA-R3-CD, 2010 WL 366670, at

*13 (Tenn. Crim. App., at Nashville, Feb. 2, 2010) perm. app. denied (Tenn. June 17,

2010). Therefore, Detective Reed’s request for permission to search the Defendant’s

Cadillac was not a violation of the Defendant’s Fifth Amendment rights.

The Defendant also asserts that his consent to search the vehicle was not voluntary,

and therefore, the evidence should have been suppressed. It is well-settled that a search

conducted pursuant to a voluntary consent is an exception to the requirement that searches

and seizures be conducted pursuant to a warrant. State v. Bartram, 925 S.W.2d 227, 230

(Tenn. 1996); see also Schneckloth v. Bustamonte, 412 U.S. 218, 243 (1973) (holding that

“there is nothing constitutionally suspect in a person’s voluntarily allowing a search”). The

16

sufficiency and validity of consent depend largely upon the facts and circumstances

presented by each particular case. State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim.

App. 1993). To satisfy the constitutional reasonableness standard, the consent must be

“‘unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.’”

State v. Simpson, 968 S.W.2d 776, 784 (Tenn. 1998) (quoting State v. Brown, 836 S.W.2d

530, 547 (Tenn. 1992)). “The existence of consent and whether it was voluntarily given

are questions of fact” involving an examination of the totality of the circumstances in each

case. State v. Ashworth, 3 S.W.3d 25, 29 (Tenn. Crim. App. 1999); see State v. McCrary,

45 S.W.3d 36, 43 (Tenn. Crim. App. 2000).

The facts and circumstances of this case do not support the Defendant’s contention

that his consent was not voluntary. Detective Reed, whom the Defendant had known since

their childhood, asked permission to search the vehicle, and the Defendant consented under

the condition that he be allowed to observe the search. Detective Reed permitted the

Defendant to observe the search as he requested. Upon police officers finding a bloody

shoe in the trunk of the vehicle, the Defendant immediately and effectively invoked his

“rights,” causing officers to immediately terminate the search. Further, nothing on the

video recording of the stop is contrary to the trial court’s finding that the Defendant gave

valid consent.

The Defendant also argues that the trial court erred when it made an alternative

ruling that, even were it to find the search unlawful, the evidence would still be admissible

under the inevitable discovery doctrine. Specifically, he asserts that because the police did

not have probable cause to effectuate an arrest, the inevitable discovery doctrine does not

apply. We need not address this argument based upon our conclusion that the search in

this case was lawful.

Accordingly, we conclude that the trial court properly denied the Defendant’s

motion to suppress evidence found during the search of his vehicle. The Defendant is not

entitled to relief as to this issue.

B. Kelley’s Videotaped Confession

The Defendant argues that the trial court denied him the right to present a defense

when it denied his motion to play Kelley’s videotaped confession. The State responds that

the trial court correctly found that Kelley’s statements were not sufficiently reliable or

trustworthy to warrant admission into evidence. We agree with the State.

Almost a year before the Defendant’s trial, the trial court granted, over defense

opposition, the State’s motion to join the Defendant’s case with Kelley’s case. Shortly

before trial, however, a jailhouse informant, Michael Morgan, provided a statement about a

17

conversation between Morgan and Kelley wherein Kelley made particularly damaging

statements as to the Defendant’s involvement in these crimes. Morgan’s statement to

police is as follows:

Sometime around the first of Aug. While on my 1 hr. wreck [sic] time I have

been talking with a fellow inmate named [Kelley]. [Kelley] is in max for

murder and agravatted [sic] robbery. He is on my sceduled [sic] wreck [sic]

time (1 hr) for medical reasons. I’m in max for diabetes type 1. On or about

(2) weeks time me and [Kelley] would talk about his case as well as mine.

He told me that him and his cousin meet [sic] a guy at a bar in riverside area

(were [sic] I live). And was partying with him and decided to get some

crack cocaine. They seen the guy had money so they ([Kelley] and [the

Defendant]) went to the bathroom without the guy and planned to beat him

up and take his money. After hooking up with a good amount of crack

cocaine [Kelley] and [the Defendant] ran out of money and crack. The guy

who was murdered still had cash and crack. [Kelley] told me him [sic] and

his cousin planned on beating and robbing this man. They beat him up then

the cousin told [Kelley] to kick him again in the face, [Kelley] did. [Kelley]

told me he seen a linching [sic] of one man on a “Faces of Death” movie

were [sic] the nose was shot through the brain and he told em he wanted to

see if it really works like the movie. He walked away from the man - He

was still moving. He said and [the Defendant] told him to go back and kick

him in the face. So he did. [Kelley] said [“]I tried to kill him but I did not

know I did.[”] He said the guy was greety [sic] with his money and dope.

He said he was high off crack and drunk from the bar. He also said the only

reason he got caught was the bloody shoe in the car. He had no remorse at

all. He also said that the [Defendant] has his back and would cover him so

he does little time. They took [the victim] to a dumpster area.

The Defendant filed a motion to sever, and Kelley was tried alone. At Kelley’s trial,

Morgan testified, and Detective Reed read Kelley’s written statement3 into evidence. In its

brief, the State provided the following excerpt of Detective Reed’s testimony reciting

Kelley’s statement:

I was at Rebel and me and [the Defendant] was at the bar. We left with that

guy, went to get some dope at several places, nothing happened. That guy

started wanting to fight and he hit me when he grabbed my hands and I hit

3

The State has provided an excerpt of the trial testimony. We do not, however, have the trial transcript

from Kelley’s trial in the record before us. We do have the videotaped statement, and it is consistent with

the written statement.

18

and kicked him one time apiece in self defense. It was self defense. I swear I

was threatened and assaulted.

The Defendant filed a motion requesting that the trial court admit Kelley’s

videotaped confession pursuant to Tennessee Rule of Evidence 804(a). The Defendant

“anticipated” that Kelley would assert his Fifth Amendment right against self-

incrimination, causing him to be “unavailable” pursuant to Rule 804(a). The trial court

issued a preliminary order finding the motion premature because Kelley had not exercised

his Fifth Amendment rights. The trial court delayed its ruling, but it went on to state that,

“the statements contained in the videotaped statement are not reliable and there will be no

violation of the Defendant[]’s due process rights if the video is not admitted at trial.”

At the beginning of the defense’s proof, the Defendant called Kelley, who, upon

advice of counsel, declined to testify. The trial court found Kelley to be an unavailable

witness, and the trial court revisited the Defendant’s motion to admit the videotaped

statement. The defense argued that the videotaped statement should be admitted as a

statement against interest. The State pointed out that Kelley made multiple conflicting

statements to police. Some of the statements were exculpatory as to the Defendant, but

others were not, such as statements Kelley made to fellow inmate Morgan. The State

argued that if the Defendant was allowed to play Kelley’s videotaped statement, then the

State would move to enter Kelley’s statements to Morgan, which lead to the following

exchange between defense counsel and the trial court:

The Court: [I]f you got to play the video recording of the interview of [ ]

Kell[e]y by law enforcement officers, in which he made

statements favorable to [the Defendant], and you did so under

Rule 8.04, wouldn’t the State also be able then to put on . . .

testimony of Mr. Morgan, about what [ ] Kell[e]y said about

the Defendant? Because [ ] Kell[e]y would be unavailable to

the State as well as to the defendant.

Defense: Yes. At that point, the . . . State could attack the declarant’s . .

. credibility.

....

The Court: Now, which would be more prejudicial to [the Defendant], to

put it all in or to leave it all out?

Defense: Put it all in, that would definitely be more prejudicial to [the

Defendant].

19

The trial court then ruled that Kelley had made “too many different and inconsistent

statements” for the trial court to find that the out-of-court declarations are reliable for

purposes of admissibility.

“Admission of evidence is entrusted to the sound discretion of the trial court, and a

trial court’s ruling on evidence will be disturbed only upon a clear showing of abuse of

discretion.” State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004). Rule 801(c) defines

hearsay as “a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay statements

are generally not allowed into evidence. Tenn Rule Evid. 802. The Tennessee Rules of

Evidence, however, provide for exceptions to the hearsay rule. See Tenn. Rule Evid. 803

& 804. These exceptions have been carved out because they “bear sufficient indicia of

reliability and trustworthiness to warrant admission.” State v. Henry, 33 S.W.3d 797, 802

(Tenn. 2000).

Rule 804(b)(3) of the Tennessee Rules of Evidence states:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if

the declarant is unavailable as a witness:

....

(3) Statement Against Interest. A statement which was at the time of its

making so far contrary to the declarant’s pecuniary or proprietary interest, or so

far tended to subject the declarant to civil or criminal liability or to render

invalid a claim by the declarant against another, that a reasonable person in the

declarant’s position would not have made the statement unless believing it to

be true.

Rule 804(b)(3) allows for the introduction of declarations against penal interest. Tenn. R.

Evid. 804(b)(3), Advisory Comm’n Cmts. It is up to the trial court to determine whether a

statement is believable, and this Court will not overturn the trial court’s decision in this

regard unless there is an abuse of discretion. See State v. James Blanton, No. 01C01-9307-

CC-00218, 1996 WL 219609, at *33-34 (Tenn. Crim. App., at Nashville, Apr. 30, 1996),

no Tenn. R. App. P 11 application filed.

Kelley was unavailable as a witness, and the statements he made to police

acknowledging his role in the victim’s death may have been admissible under the statement

against interest exception. Kelley’s exculpatory statements about the Defendant, however,

fall outside the scope of the exception, because they did not subject Kelley to criminal

liability. See State v. King, 694 S.W.2d 941, 945 (Tenn. 1985) (statements by codefendants

20

which tend to corroborate the defendant’s version of the facts but do not inculpate the

codefendant are not admissible under the statement against interest exception); State v.

Sanderson, No. M2007-00387-CCA-R3-CD, 2008 WL 624922 (Tenn. Crim. App., at

Nashville, March 7, 2008), no Tenn. R. App. P. 11 application filed. We conclude that the

trial court did not abuse its discretion in excluding the video recorded statement.

The Defendant also argues that the exclusion of the exculpatory statements violated

his right to due process of law and that this right trumps the application of the Tennessee

Rules of Evidence. The due process clauses of the Sixth and Fourteenth Amendments of

the United States Constitution guarantee a criminal defendant the right to present a defense

and call favorable witnesses. State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000). However,

this right is not absolute, and the accused must comply with established rules of procedure

and evidence designed to assure both fairness and reliability in the ascertainment of guilt or

innocence. “Such rules do not abridge an accused’s right to present a defense so long as

they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’”

Id. (citations omitted). The facts of each case must be scrutinized to determine whether the

constitutional right to present evidence has been violated by the exclusion of evidence. A

reviewing court must consider whether (1) the excluded evidence is critical to the defense;

(2) the evidence bears sufficient indicia of reliability; and (3) the interest supporting the

exclusion of the evidence is substantially important. Id. at 433-34.

Applying these factors, we first conclude that the excluded evidence was critical to

the defense. Kelley’s statements cast doubt on the Defendant’s participation in the assault

and robbery. As the trial court correctly pointed out, the statements, however, bear little

indicia of reliability. They are uncorroborated statements by a co-defendant and are

contradicted by another statement made by Kelley to a fellow inmate, in which he

implicated the Defendant in the attack on the victim. The third factor is closely related to

the second and also weighs against the Defendant. The hearsay rule serves an important

interest in excluding testimony that is untrustworthy. State v. Flood, 219 S.W.3d 307, 319

(Tenn. 2007). “Out-of-court statements are traditionally excluded because they lack the

conventional indicia of reliability: they are usually not made under oath or other

circumstances that impress the speaker with the solemnity of his statements; the declarant’s

word is not subject to cross-examination; and he is not available in order that his demeanor

and credibility may be assessed by the jury.” Chambers v. Mississippi, 410 U.S. 284, 298

(1973). Balancing these three factors, we conclude that, although the statements were

critical to the defense, the Defendant’s right to due process of law was not violated by their

exclusion because the statements were insufficiently reliable, and the governmental interest

supporting their exclusion was substantially important.

Accordingly, the trial court properly excluded Kelley’s videotaped statement to

police. The Defendant is not entitled to relief.

21

C. Sufficiency of the Evidence

The Defendant asserts that the evidence is insufficient to sustain his convictions for

first degree premeditated murder, first degree felony murder, aggravated robbery and

tampering with evidence. The State counters that sufficient evidence was presented from

which a reasonable juror could conclude that the Defendant committed each of the crimes

for which he was convicted.

When an accused challenges the sufficiency of the evidence, this Court’s standard

of review is whether, after considering 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 Tenn. R. App. P.

13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91

S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct

evidence, circumstantial evidence, or a combination of both direct and circumstantial

evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In

determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate

the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may

this Court substitute its inferences for those drawn by the trier of fact from the evidence.

State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859

(Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight and value

of the evidence, as well as all factual issues raised by the evidence are resolved by the trier

of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); See also Liakas, 286 S.W.2d

at 859. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of

the witnesses for the State and resolves all conflicts in favor of the theory of the State.”

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973)). The Tennessee Supreme Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523

(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view

of the evidence contained in the record, as well as all reasonable inferences which may be

drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d

274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the

22

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

defendant bears the burden of showing that the evidence was legally insufficient to sustain

a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

1. First Degree Murder

In this case, the jury convicted the Defendant of first degree premeditated murder

and first degree felony murder. The trial court merged the two convictions; however, the

Defendant challenges both convictions on appeal. First degree murder is defined as a

“premeditated and intentional killing of another.” T.C.A. § 39-13-202(a)(1) (2010).

Premeditation refers to “an act done after the exercise of reflection and judgment.” T.C.A.

§ 39-13-202(d) (2010). Whether the defendant premeditated the killing is for the jury to

decide, and the jury may look at the circumstances of the killing to decide that issue.

Bland, 958 S.W.2d at 660. The Tennessee Code states that, while “the intent to kill must

have been formed prior to the act itself,” that purpose need not “pre-exist in the mind of the

accused for any definite period of time” for a defendant to have premeditated the killing.

T.C.A. § 39-13-202(d) (2010).

The following factors have been accepted as actions that demonstrate the existence

of premeditation: the use of a deadly weapon upon an unarmed victim, the particular

cruelty of the killing, declarations by the defendant of an intent to kill, evidence of

procurement of a weapon, preparations before the killing for concealment of the crime, and

calmness immediately after the killing. Bland, 958 S.W.2d at 660. In addition, a jury may

consider destruction or secretion of evidence of the murder and “the planning activities by

the appellant prior to the killing, the appellant’s prior relationship with the victim, and the

nature of the killing.” State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000); State v. Halake,

102 S.W.3d 661, 668 (Tenn. Crim. App. 2001) (citing State v. Gentry, 881 S.W.2d 1, 4-5

(Tenn. Crim. App. 1993)). Also, “[e]stablishment of a motive for the killing is a factor

from which the jury may infer premeditation.” State v. Leach, 148 S.W.3d 42, 54 (Tenn.

2004).

Felony murder is “[a] killing of another committed in the perpetration of or attempt

to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft,

kidnapping, aggravated child abuse, aggravated child neglect, or aircraft piracy.” T.C.A. §

39-13-202(a)(2) (2010). In this case, the Defendant was convicted of first degree felony

murder in the perpetration of an aggravated robbery. The mental state required for this

conviction was that the Defendant possessed the intent to commit the aggravated robbery,

23

which was the underlying offense.

The evidence, considered in the light most favorable to the State, proves that the

victim went to a bar on the night of March 6, 2010, with approximately $100.00 in cash,

his landlord’s cellular phone, and his medication kept in a plastic pill container. Later that

night, two men, one large and one considerably shorter, were seen calmly walking away

from the dying victim at the Wayside Inn. The two men were walking toward a maroon,

older-model Cadillac. Shortly thereafter, the Defendant and Kelley, who matched the

description of the men seen leaving the Wayside Inn, were stopped while in a maroon,

older-model Cadillac. The victim later died from a skull fracture caused by blunt force

trauma. He had bruising to his arm and thigh and broken ribs. The victim had a distinctive

bruise on his back which was consistent with a tire tool found in the Defendant’s car on the

night of these crimes. The victim’s pill case was found lying near him, and the cellular

phone and his wallet were missing.

After the Defendant and Kelley were stopped by police and told about the

investigation concerning a serious assault or attempted homicide, the Defendant asked, “Is

he dead?” Thereafter, the Defendant gave to the police his consent to search his vehicle

under the condition that he be allowed to stand by his car during the search. Police found a

bloody shoe in the trunk of the car. The blood was the victim’s, and epithelial cells found

inside the shoe were matched to Kelley’s DNA sample. From inside the back of the police

car, the Defendant stated that the source of the blood on the shoes was from a dog that had

cut his leg.

At the detective’s office after his arrest, the Defendant requested use of a bathroom,

inferring that he needed to have a bowel movement. Police allowed the Defendant use of

the bathroom unaccompanied, even though he had not yet been strip-searched. Officer

Ellis noticed that when the Defendant exited the bathroom, there was an excessive amount

of water on the floor. Several days later, a plumber was called to fix the toilet, and the

victim’s identification was recovered from inside the toilet as the source of the clog.

Considering premeditation factors, a tire tool was procured to beat the unarmed

victim. The victim was hit repeatedly, sustaining bruising to his back, thigh, and arm. He

also sustained multiple broken ribs, and his skull was fractured. Thereafter, the Defendant

attempted to conceal the crimes by disposing of the stolen wallet containing the victim’s

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identification. He was calm following the killing, offering no assistance and walking away

from the victim as he lay bleeding on the ground. The victim possessed both cash and pills

on the night of these crimes. See Bland, 958 S.W.2d at 660; Nichols, 24 S.W.3d at 302;.

Halake, 102 S.W.3d at 668. We conclude that these factors support the jury’s finding that

the Defendant acted with premeditation when he killed the victim.

Further, the evidence also supports the jury’s finding that the Defendant participated

in an aggravated robbery that resulted in the victim’s death. The Defendant drove his car,

with Kelley as a passenger, away from the crime scene immediately after the crimes. The

Defendant admitted to a fellow inmate that he kicked and hit the victim. The victim’s pill

container was found removed from the victim’s pocket and lying on the ground near the

victim. The cellular phone the victim carried that night and his identification wallet were

missing. The identification wallet was later found stuck in a toilet in the detective’s office

bathroom that the Defendant had earlier used upon his arrest. The victim died of injuries

sustained through blunt force trauma. Bruising to the victim’s back and the skull fracture

were consistent with an injury caused by a tire iron like the one found in the Defendant’s

trunk on the night of the aggravated robbery and homicide.

Accordingly, we conclude that the evidence is sufficient to support both the

convictions for first degree murder beyond a reasonable doubt. As such, the Defendant is

not entitled to relief on this issue.

2. Aggravated Robbery

The Defendant contends that the State failed to show that he knowingly took

anything from the victim. The State responds that there was sufficient evidence that the

Defendant “unlawfully, and intentionally or knowingly obtain[ed] property” from the

victim. We agree with the State.

A conviction for aggravated robbery, as relevant to this case, requires proof beyond

a reasonable doubt that the Defendant committed an “intentional or knowing theft of

property from the person of another by violence or putting the person in fear” and the

victim suffered serious bodily injury. T.C.A. §§ 39-13-401(a), -402(a)(2) (2010).

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The evidence, considered in the light most favorable to the State, showed that two

men, one large and one considerably smaller, were seen calmly walking away from the

dying victim at the Wayside Inn. The two men were walking toward a maroon, older-

model Cadillac. The Defendant owned a car matching this description and was found,

along with Kelley, in the Cadillac a short time after the assault against the victim. Kelley

and the Defendant also matched the physical description of the men seen leaving the

Wayside Inn. Items that the victim normally kept in his pockets were found either lying

near him at the scene or completely missing. A cellular phone in the victim’s possession

that night was later found in Kelley’s possession, and the victim’s identification was found

inside a toilet the Defendant used the night of these events. The victim died as a result of

blunt force trauma causing a skull fracture. He additionally had bruising and broken ribs.

A distinctive bruise on his back was consistent with a tire tool recovered from the

Defendant’s car. After his arrest, the Defendant admitted to a fellow inmate that he kicked

and hit the victim. This evidence supports the jury’s finding that the Defendant

intentionally or knowingly committed a theft from the victim by violence and that the

victim suffered serious bodily injury.

Accordingly, we conclude that the evidence is sufficient to support the conviction

for aggravated robbery beyond a reasonable doubt. As such, the Defendant is not entitled

to relief on this issue

3. Tampering with Evidence

To convict the Defendant of tampering with evidence, the State needed to establish,

beyond a reasonable doubt, that the Defendant, knowing that an investigation or official

proceeding was pending or in progress, altered, destroyed, or concealed any record,

document, or thing with the intent to impair its verity, legibility, or availability as evidence

in the investigation or official proceeding. T.C.A. § 39-16-503(a)(1) (2010).

The Defendant asserts that the proof did not show beyond a reasonable doubt that he

placed the ID case in the commode. The State responds that there was sufficient proof that

the Defendant attempted to conceal and destroy evidence. We agree with the State.

The evidence, considered in the light most favorable to the State, shows that the

victim routinely carried his identification in a clear plastic case in his front pants pocket.

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When police searched the victim’s body for identification, none was found. After the

Defendant was transported to the police department, he indicated to Officer Ellis that he

needed to use the restroom. Officer Ellis allowed the Defendant to enter the bathroom

unaccompanied. The Defendant had been searched for weapons, but a full strip-search had

not been completed. After a period of time, the Defendant exited the bathroom, and

Officer Ellis noticed a “considerable amount of water” on the bathroom floor. The

victim’s identification case was later recovered from the toilet. This evidence supports a

jury’s finding that the Defendant attempted to conceal the victim’s identification from

police officers investigating the aggravated robbery and assault.

Accordingly, we conclude that the evidence is sufficient to support the conviction

for tampering with evidence beyond a reasonable doubt. As such, the Defendant is not

entitled to relief on this issue.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the

judgments of the trial court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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