State of Tennessee v. Derrick Settles

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 11, 2007 Session

STATE OF TENNESSEE v. DERRICK SETTLES

Appeal from the Criminal Court for Shelby County

No. 03-02541 Arthur T. Bennett, Judge

No. W2006-02350-CCA-R3-CD - Filed November 26, 2007

The Defendant, Derrick Settles, was convicted of two counts of first degree murder and two counts

of possession of over .5 ounces of marijuana with the intent to sell. The jury sentenced him to life

without the possibility of parole for one murder conviction, and the trial court ordered a consecutive

life sentence for the other. The trial court also merged the possession offenses into a single

conviction and imposed a concurrent sentence of one year for that conviction. In this appeal, the

Defendant argues that the trial court erred by denying his pretrial motions to suppress the evidence

recovered from a search of his apartment and his confession because he lacked the intellectual

capacity to validly consent to the search or effectively waive the rights guaranteed him by Miranda

v. Arizona, 384 U.S. 436, 479 (1966). Following our review, we affirm the judgments of the trial

court.

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

Remanded for Correction of Clerical Error

DAVID H. WELLES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

ALAN E. GLENN , JJ., joined.

William D. Massey, Lorna S. McClusky (on appeal); Mary K. Kent and Larry Nance (at trial);

Assistant Public Defenders, Memphis, Tennessee, for the appellant, Derrick Settles.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Dean Decandia, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Factual Background

Jamie Crawford and Shawn Williams were both shot in the head at close range and killed

during the early morning hours of December 5, 2002, in Memphis. Four days later, the Shelby

County Sheriff’s Department discovered the murder weapon and thirteen small bags of marijuana

in the nineteen-year-old Defendant’s apartment. After the Defendant was arrested, he gave a

statement admitting that he had killed both victims. A grand jury indicted him for two counts of first

degree murder and two counts of possession of marijuana with the intent to sell or deliver.

Subsequently, the Defendant filed pretrial motions to suppress both the evidence recovered from his

apartment and the inculpatory statement he gave to police, arguing that he did not validly consent

to the search or effectively waive his Miranda rights. The trial court denied these motions,1 and the

Defendant elected to have a jury trial.

State’s Evidence

Officer Louie Hall of the Shelby County Sheriff’s Department testified that he received a call

at approximately 4:35 a.m. on December 5, 2002, regarding two suspicious people sitting in a

vehicle located at 5301 Farm View Drive in Memphis. When he and his partner arrived at that

location, they found a maroon, “older model Cadillac” sitting stationary with the engine running and

the headlights on, and they observed two people (one male, one female) in the front seats who they

initially thought were sleeping. When Officer Hall rapped on the driver’s-side window, they did not

stir. The female was in the driver’s seat, and the male was in the passenger’s seat. When Officer

Hall opened the driver’s-side door, the female occupant’s arm fell out. He felt for a pulse, and there

was none. He saw blood coming out of their noses, so he called for an ambulance before securing

the scene. When the emergency medical technicians arrived, they confirmed that the car’s occupants

were dead.

Officer Hall spoke with the resident of 5301 Farm View Drive. The resident had woken up

to hear a car running outside. After going out to the car, seeing blood, and being unable to wake up

the car’s occupants, the resident called the sheriff’s department. On cross-examination, Officer Hall

testified that the car was parked in front of the only house on Farm View Drive and confirmed that

it was “out in the country” in the Reagan Farm subdivision. Officer Hall turned off the headlights

and the engine but did not touch anything else inside the car. The two victims were later identified

as Shawn Williams and Jamie Crawford.

Mrs. Dollann Williams testified that Shawn Williams was her son and that he was twenty-

four years old when he died. Mrs. Amy Finnie testified that Jamie Crawford was her daughter, and

that she was nineteen years old when she died. According to Mrs. Finnie, the victims were dating

each other at the time they were killed.

1

The trial court held several pretrial evidentiary hearings during which expert testimony regarding the

Defendant’s intellectual capacity was presented on the issue of whether he consented to the search of his apartment or

effectively waived his Miranda rights. This evidence and the trial court’s rulings are detailed in the analysis section of

this opinion.

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Forensic pathologist Dr. Teresa Campbell, testifying as an expert, stated that she conducted

autopsies on both victims. Shawn Williams had three gunshot wounds that were all inflicted at a

very close range, and Dr. Campbell determined that his death was caused by “[m]ultiple contact and

near gunshot wounds to the head and neck.” Jamie Crawford died from a single gunshot wound to

the back of her head. Toxicology reports indicated that neither victim had drugs or alcohol in their

system. Dr. Campbell recovered all four bullets from the victims.

Paulette Sutton, the Director of Investigations for the Memphis Medical Examiner’s Office,

testified as an expert in bloodstain pattern analysis. She examined the interior of the car in which

the victims were found and concluded that the bloodstain pattern on the backseat and rear windows

was consistent with someone shooting the victims from the driver’s side of the backseat while

leaning forward toward the center of the car.

Lieutenant John Mills, a detective with the homicide division of the Shelby County Sheriff’s

Department, testified that he arrived at the crime scene after the victims were pronounced dead by

medical personnel. He described how the victims appeared when he arrived:

[I]f you [were] just looking at them, you’d think they both were asleep. Both their

heads were tilted to the left in a relaxed position. The car was in park. The male on

the right, his arm was on the console, his other arm was in his lap, and his feet were

crossed.

However, they were bleeding from their mouths, noses and the backs of their heads.

After the bodies were identified and removed, the vehicle in which they were discovered was

delivered to a crime-scene laboratory for forensic processing. Bloodstain analysis was conducted,

but no identifiable fingerprints were recovered from the car. Also, the blood in the car was analyzed

and determined to have come only from the two victims.

Lieutenant Mills interviewed the victims’ families in an attempt to “get some leads.” After

talking with an ex-girlfriend of Shawn Williams, he learned that the Defendant was friends with Mr.

Williams and decided to interview him “[t]o follow-up, to get him to point us in a direction so we

could close—get the loop smaller of who was with these two people that night.” At that time, the

Defendant was not a suspect but was considered a potential witness.

Lieutenant Mills and another detective, Sergeant Raymond Sides, as well as some uniformed

officers from the Memphis Police Department’s Metropolitan Gang Unit, went to the Defendant’s

apartment. On the way there, Lieutenant Mills discovered that an unrelated warrant had previously

been issued for the Defendant’s arrest for aggravated burglary. On arrival, they showed a picture of

the Defendant to the apartment complex’s maintenance man and a neighbor to confirm that the

Defendant lived in apartment number seven. When they knocked on the apartment’s door, there was

no answer, but “one of the officers with [Lieutenant Mills] said that a male just looked out the side

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window curtain and closed it.” At that point, the maintenance man gave them a key to the apartment

because he was worried the policemen would “kick the door in.”

They used the key to enter the apartment, and one of the uniformed officers found the

Defendant hiding in a closet. The Defendant then consented to a search of his apartment, and “a

silver .357 Smith and Wesson” magnum revolver, “a black automatic pistol, and 13 bags of a leafy

green substance” were discovered under the bathroom sink inside a space within the wall that had

been “kicked out.” In addition, a box of “baggies” and a scale were found on a table in the bedroom,

and there were two boxes of ammunition2 on a shelf in the closet. The Smith and Wesson revolver

held six bullets, but when it was discovered it contained only two live rounds. Four cellular

telephones were also recovered from the apartment.

Lieutenant Mills testified that in his eighteen years of experience working in the “patrol

division,” he learned that people who sell drugs “use scales to get the correct amount [of drugs] in

each bag, they use baggies, and seal them up and tie a knot in them.” He opined that the thirteen

sealed bags discovered in the Defendant’s apartment “were basically the same size” as bags of drugs

normally prepared for sale and said that they were all “almost exactly” the same weight.

Officer Murray Wilson of the Memphis Police Department testified that in the evidence

room of the Memphis police station, he tested the “green leafy substance” recovered from the

Defendant’s apartment and confirmed that it was marijuana. In addition, Erica Moody Katherine,

a special agent forensic scientist with the Tennessee Bureau of Investigation, testified as an expert

in controlled substance identification. Ms. Katherine examined the thirteen bags of “a green leafy

substance” recovered from the Defendant’s apartment and concluded that they contained 20.6 grams

of marijuana.

Lieutenant Mills further testified that after the search, he took the Defendant to the police

station “for processing and to talk to him.” As they walked out of the Defendant’s apartment, his

girlfriend, Kayla Cunningham, approached them and then agreed to also go “downtown” and give

a statement. Lieutenant Mills took Ms. Cunningham’s statement first, and she indicated that the

Defendant was responsible for the murders of Shawn Williams and Jamie Crawford.

Lieutenant Mills testified that they asked the Defendant some preliminary questions regarding

his educational background, marital status, and whether he wore glasses and that they then read the

Defendant his Miranda rights and explained them to him before he agreed to give a statement. The

Defendant signed a waiver of his Miranda rights before answering questions concerning the murders.

According to Lieutenant Mills, the Defendant was “calm” and “collected”; he did not appear to be

intoxicated and did not have the odor of burnt marijuana on him.

2

The ammunition found in the closet was not the same caliber as either handgun recovered from the apartment.

-4-

An audiocassette tape recording of the Defendant’s statement was then accepted into

evidence and played aloud. Copies of a fifty-nine-page transcript of the Defendant’s statement were

also passed out to the jurors so they could read along.

In the Defendant’s statement, he said that he received “disability” payments but

supplemented his income by selling drugs. Specifically, he said that he dealt marijuana but did not

sell “crack” and that by doing so, he made “a little extra . . . a hundred dollars here, a hundred dollars

there.”

The Defendant also said in his recorded statement that Shawn Williams and Jamie Crawford

came over to his house at approximately 7:30 p.m. on December 4, 2002. At first, the three of them

smoked marijuana and “just killed some time.” However, “around” 11:30 p.m. or 12:30 a.m., the

Defendant, who did not own a car, offered Mr. Williams twenty dollars to drive him to an

unspecified location so that he could sell a “SKS” assault rifle.3 Mr. Williams reluctantly agreed to

go with the Defendant to sell the gun, but Ms. Crawford drove his car because Mr. Williams was

“high” and “sleepy.”

The Defendant explained in his statement that as they drove, he attempted to contact his

buyer on the telephone but said that the individual was “bullshitting” by not answering the telephone

even though he was home; so they drove to his house anyway. They arrived at the house and, despite

the fact that there were not any lights on, the Defendant decided to get out of the car and “check and

see who [was] in the house.” He explained that he had a .357 Smith and Wesson pistol in his pocket

and that Mr. Williams was also armed with a “long, black” pistol that resembled a “Desert Eagle.”

In his statement, the Defendant described what happened after he exited the car:

A: I got to the house. I said I was talking to myself I am going to knock on the

door [sic]. I got out of the car. I was walking towards door [sic]. As I was

walked [sic] to the door I was never going fast. I was trying to listen [to]

them to park the car. Because I had the loaded [rifle] in the car . . . .

Q: Did you take it up to the door up [sic] with you?

A: Naw. The only thing I took to the door with me was my pistol and my

handcuffs because I didn’t [. . . .]

Q: Ok. You left the [rifle] in the car?

A: Yeah in the car.

3

According to the Defendant’s statement, he purchased the rifle earlier that evening from an individual whose

name he could not recall for $80 and planned to sell it for $150 or more. To garner the profit, he obtained bullets for

the rifle and loaded it because he knew he could sell it for more money if it was loaded.

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Q: Where?

A: In the backseat with them.

Q: You left it loaded in the backseat?

A: Yeah.

Q: You are . . . you are walking up to the front door?

A: Yeah. And the whole time I constantly [sic] looking back because I am trying

to listen to see if they going [sic] to park. So I go to the door. I knock on the

door two times real quick because it like they fixing back out of the driveway

on me [sic]. So I knocked on the door real quick two times and ran back to

the car and said, “Man, (inaudible).” [Mr. Williams] put the pistol on me and

grabbed the [rifle].

Q: Alright.

A: By that time, I knocked the [rifle] out of the way and just shot him real quick.

....

Q: Alright. Where did you shoot him at [sic]?

A: In the head.

Q: And what did he do then?

A: He died. He was dead.

....

A. . . . I shot him in the back of the head like wow . . . wow . . . real quick.

Q: Just two times?

A: Yea. Two times.

Q: Now. What about the driver girl, Jamie? What was she doing?

A: I shot both of them. I didn’t take a chance.

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Q: You think she had a weapon?

A: Naw but I knew they was in it together [sic] they were going around setting

people’s up for about a couple of months now. Just going around setting

people up.

On the audiotape recording, the Defendant further stated that he had “jumped back in” the

car on the driver’s side and was “pretty much” behind the driver’s seat when he shot the victims.

After the shootings, he took Mr. Williams’s pistol and the assault rifle and ran. He stashed those

weapons “by some woods” but came back later the same night to retrieve them. He threw the shell

casings from the four spent bullets in a ditch “[b]ecause [he] was scared and [he] already knew it was

evidence.” The next day, the Defendant sold the rifle for $150 and Mr. Williams’ pistol for $200,

but he did not know to whom he sold them. He also stated that he told Ms. Cunningham the day

after the killings that he was “real spooked” because he had “shot two people.”

Regarding the location where the shooting occurred, the Defendant stated that he was “not

even for sure” which house the supposed buyer lived in but that he only followed directions provided

by an unknown person. He stated that he “[n]ever knew who lived there.”

Thomas Sesson testified that he lived at 6288 Farm Hill Drive, next to 5301 Farm View

Drive where the victims were found dead. On December 5, 2002, he was driving home from work

at his usual time, approximately 1:10 a.m., when he saw a “burgundy Cadillac” sitting in the

driveway of 5301 Farm View Drive “with the lights on bright.” The car was parked, but he did not

notice whether anyone was in the car. Later, he learned from a neighbor that the car’s two occupants

had been shot and killed.

Sergeant Raymond Sides, also a detective with the Shelby County Sheriff’s Department,

testified that he delivered the handguns discovered in the Defendant’s apartment and the bullets

recovered from the victims’ bodies to the Tennessee Bureau of Investigation. Steve Scott, a special

agent forensic scientist with the Tennessee Bureau of Investigation’s Firearms Identification Unit,

testified as an expert in firearms identification, and he stated that he was able to match bullets

recovered from the victims’ bodies to the .357 caliber Smith and Wesson magnum revolver

recovered from the Defendant’s apartment. He detailed the microscopic-comparison process utilized

to determine whether a certain bullet was fired from a specific gun and stated that, based on his

testing, at least one bullet recovered from each victim in this case “had been fired through the barrel

of [the Smith and Wesson revolver taken from the Defendant’s apartment] and no other revolver in

the world.”

Defense Proof

Christin Lee testified that he was the Defendant’s friend and had known him for eleven years.

He stated that on December 4, 2002, he arrived at the Defendant’s apartment with another friend,

Michael Jones, at approximately 5:30 p.m. and did not leave until approximately 2:00 a.m. the

following morning. Mr. Lee testified that the Defendant’s brother, Gary, “and a girl named Star and

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a dude named Tyron” were all at the Defendant’s apartment that night with the victims. Mr. Lee

explained that this group “was all over at [the Defendant’s] house sitting down playing, playing

video games, playing beats—playing beats on the drum machine. We was [sic] just sitting around

drinking and having fun. Then we stayed there the rest of the night after everybody had left.”

Further, Mr. Lee testified that the victims left the gathering after a “guy named Bear” but that

he did not recall at what time that was. According to Mr. Lee, the Defendant’s mother came by the

apartment that night and was upset that the Defendant was having the gathering because “she had

just paid the rent.” However, he and the Defendant, along with Michael Jones, stayed at the

apartment until they went to a Krystal restaurant at approximately 2:00 a.m. and ate “for a minute.”

Mr. Lee stated that Mr. Jones and the Defendant dropped him off at his house after they ate at

Krystal.

On cross-examination, Mr. Lee admitted that he had visited the Defendant in jail “a lot,” and

they had discussed the fact that Mr. Lee would testify for him at his trial. He also confirmed that he

had never before approached the police or the district attorney’s office with information about the

Defendant’s alibi even though the Defendant had been in jail awaiting trial for over three years.

Michael Jones testified that he had known the Defendant since 1998 when they were in high

school together. Mr. Jones stated that he was at the Defendant’s apartment on the evening of

December 4, 2002. He said that the victims were there, as well as “Gary, Star, some other girl, and

Bear” and that they were all “[p]laying video games and rapping and drinking beer.” Mr. Jones did

not know Mr. Williams but learned his name that night. According to Mr. Jones, the victims left the

apartment with Gary and Star after the Defendant’s mother “came by,” but he and Mr. Lee stayed

until 2:00 a.m. when the three of them went to Krystal. After eating, he drove Mr. Lee home and

then took the Defendant back to his apartment at approximately 3:00 a.m.

Mr. Jones also confirmed that, even though he had information about the Defendant’s alibi,

he did not approach anyone other than the victim’s mother about it until “probably about” one week

before his trial. He admitted on cross-examination that he had visited the Defendant in jail but

denied that they ever discussed his case. He did say however that he had discussed the case with Mr.

Lee “somewhat.”

The Defendant did not testify, and after deliberating, the jury convicted him on all counts.

Sentencing

Subsequently, an initial sentencing hearing was held in order for the jury to receive evidence

on whether certain aggravating factors were present during the Defendant’s murder of Jamie

Crawford. After the hearing and further deliberation, the jury unanimously found that the State had

proven beyond a reasonable doubt that the Defendant’s murder of Jamie Crawford (count two of his

indictment) was knowingly committed while the Defendant had a substantial role in committing a

first degree murder. See Tenn. Code Ann. § 39-13-204(h)(i)(7). Consequently, the jury fixed his

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punishment for the murder of Jamie Crawford at imprisonment for life without the possibility of

parole.

An additional sentencing hearing was held in order for the trial court to impose sentence on

his remaining convictions. At the close of this hearing, the trial court imposed a life sentence for the

murder of Shawn Williams (count one of his indictment) and ordered that it be served consecutively

to the life without the possibility of parole sentence because the Defendant had distinct motives for

killing each victim. The trial court also merged the two possession convictions (counts three and

four) into a single offense and ordered a one-year sentence to be served as a Range I, standard

offender,4 and concurrently with the life without the possibility of parole sentence.

The Defendant’s motion for a new trial was denied, and he filed a timely notice of appeal.

Analysis

On appeal, the Defendant raises two interrelated arguments. Essentially, he avers that he did

not have the intellectual capacity to effectively consent to the search of his apartment or validly

waive his Miranda rights. Accordingly, he posits that the trial court erred by denying his pretrial

motions to suppress the evidence recovered from his apartment (i.e., the murder weapon and the

marijuana) and his confession. In making these arguments, the Defendant relies on evidence

presented at a series of pretrial hearings,5 including expert testimony regarding the Defendant’s

cognitive abilities. After reviewing the evidence presented at the pretrial hearings, we will address

each argument in turn.

At the pretrial hearings, clinical psychologist Dr. Joseph Charles Angelillo, an expert for the

defense, testified that he met with the Defendant four times prior to appearing in court. He also

reviewed the Defendant’s mental-health history, which included the results of prior intelligence tests

the Defendant took when he was a public school student.

Dr. Angelillo stated that, based on the Defendant’s records, when he was ten years old his

“full scale” intelligence quotient (“IQ”) was sixty-seven, and based on an “achievement test,” he was

functioning at a first grade level in both reading and writing skills. According to an adaptive

functioning test administered by his foster mother at about the same age, his communication, daily

living and socialization skills were all “below the .1st percentile,” meaning that approximately

4

Discussion between the trial court and counsel at the latter sentencing hearing showed that the Defendant

actually met the criteria to be sentenced as a Range II, multiple offender, but as no evidence or argument was presented

to establish the fact, he was sentenced as a Range I, standard offender for the possession offense.

5

Specifically, the trial court held three pretrial hearings. The first was styled as a motion for competency and

was held on April 15, 2005. The second was held on February 2, 2006, on the defense’s motion to prevent the State from

seeking the death penalty. The final pretrial hearing, held on February 10, 2006, was the official hearing on the

Defendant’s motions to suppress the evidence recovered from his apartment and his confession. However, the argument

and testimony presented at all three hearings directly addressed the suppression issues. As such, the evidence presented

at all three hearings is collectively summarized.

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99.5% of people the same age would score higher than he did. At that time, “he was diagnosed with

mild mental retardation according to Tennessee eligibility requirements.” His intelligence was tested

again the same year, and his full scale IQ was recorded on that occasion as seventy-two.

When the Defendant was fourteen years old, results of an intelligence test showed his full

scale IQ to be eighty-three, but in July of the same year, he scored a full scale IQ of fifty. At that

time, the doctor administering the test noted that the Defendant was not motivated but did not

indicate that the Defendant was malingering in order to intentionally score low. Dr. Angelillo

testified that the test results noted that his “psycho-social interactions appear to be significantly

impaired at present. [His] level of insight and judgment appears to be impaired, and it’s likely he

could have difficulty setting realistic goals and making significant decision[s] independent of

others.”

The Defendant was again tested in March of 2002. Those test results showed his full scale

IQ to be seventy-two, and he was also “found to have generalized learning disorder and significant

symptoms of depression.” At some point, he was prescribed medication for his depression.

Prior to the pretrial hearings, in August of 2004, Dr. Angelillo himself administered a

Wechsler Adult Intelligence Scale test (IQ test) to the Defendant, and he scored a full scale IQ of

fifty-three. Dr. Angelillo said the Defendant was depressed but was not certain whether the

Defendant was on his medications at the time he administered the test. Dr. Angelillo affirmed that

the low score could be attributed in part to depression and a lack of motivation. He also explained

that, although he believed the Defendant had potential to score higher, he did not think the score was

inaccurate.

Dr. Angelillo informed that, for legal purposes, there are three requirements for a person to

be diagnosed as mentally retarded: (1) the person must score below seventy on a Wechsler Adult

Intelligence Scale test; (2) the person must be deficient in at least two areas of “adaptive

functioning”; and (3) the mental retardation must manifest before the person is eighteen.6 According

to Dr. Angelillo, the Defendant met the legal criteria for mental retardation. As relates to the death

penalty however, this issue became moot when the State withdrew their stated intention to seek the

death penalty, choosing instead to seek a punishment of life without the possibility of parole. Dr.

Angelillo also administered the MacAuthur Competency Scale test to the Defendant, which informs

whether a defendant is competent to stand trial, and found the Defendant competent to stand trial.

Speaking generally about mild mental retardation, Dr. Angelillo stated that mildly mentally

retarded people understand that they are different from “normal” people and that they “try to hide

the fact that they are different” by acquiescing or agreeing. He said they “look for cues from people

as to what it is they think that they want them to say. They try to please.”

6

See Tenn. Code Ann. § 39-13-203(a) (setting out this three-pronged criteria for exemption from the death

penalty due to mental retardation).

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Asked whether the Defendant could understand his Miranda rights if someone read them to

him, Dr. Angelillo explained that he would have “severe problems” in understanding them because

he has the ability to very, very basically summarize individual sentences from

Miranda. He does not have close to the ability it takes to make meaning of the

whole, the Miranda rights, the Miranda warning in its entirety. That entails a bit of

abstracting ability that is to connect one idea to the another [sic] to be able to engage

in “what if” type of thinking to be able to go beyond the concrete, and he would have,

as he has shown in the past and continues to, severe difficulty in doing that.

Defense counsel and Dr. Angelillo also had the following exchange regarding the Defendant’s ability

to understand his Miranda rights:

DEFENSE COUNSEL: Given your examination of [the Defendant],

the testing, the prior testing that has been done, can

you give us an opinion as to whether or not he truly

understood his Miranda rights and the waiver of

them?

DR. ANGELILLO: I’ll answer the question I think you’re saying

okay because there’s no way of knowing for me or for

anybody in this [c]ourt did he understand them at that

time. There’s no way we can do that, but let

me—second thing is I’m not—I do not believe that

[the Defendant] thinks that he agreed to anything.

Now, aside from that, research does back some

of things [sic] I’m saying. I’m not saying because I

think so. I do review the research that [mentally

retarded] people do acquiesce and that it is a tendency

for people who have lower IQs to hide that they’re

maybe not as bright as others.

The other thing I might mention is, is research

is that Miranda is written on about a seventh grade

level of comprehension and writing and reading

comprehension as well. So conclusion to the question

I think you might asking [sic], he would have great

difficulty, and those are the things that would stand in

the way of good understanding.

Upon questioning by the trial court, Dr. Angelillo stated that the Defendant’s “intellectual

potential in my opinion is likely higher than his current IQ scores,” and explained that the reason

could be that he had been out of school for some time and was not “engaging in intellectually

stimulating activities,” which would promote lower IQ scores. Dr. Angelillo also agreed that the

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Defendant was not motivated but did not find that he was malingering, or intentionally trying to

secure a low score.

Dr. John Robert Hutson, also a clinical psychologist, testifying as an expert for the State,

stated that he evaluated the Defendant on two occasions in order to form an opinion on whether the

Defendant was competent to stand trial (he determined that he was) and whether an insanity defense

could be supported (he determined that it could not). Dr. Hutson described the Defendant as a

“functioning illiterate,” meaning that he could function from day to day but could not adequately

read or write on his own.

Although he had not reviewed the Defendant’s records before testifying, he also commented

on the dramatic range of scores the Defendant had received on past IQ tests. He stated that it was

not unusual for incarcerated people to not put forth their best effort on IQ tests. He also stated that

when he initially evaluated the Defendant, at the beginning of their session, the Defendant engaged

in active malingering and “attempted to act bizarre” by getting “on the floor and act[ing] like he did

not know anything, but when confronted, [the Defendant] became more cooperative and information

was obtained from him.”

Dr. Hutson found that the Defendant did not meet the definition for mental retardation and

explained as follows:

In the information I got from him, he indicated he used—well, he indicated

that under his occupation that he sold drugs and that he had been a scanner. I don’t

recall what a scanner was whether that meant he was like a check-out person and

scanned items through a scanning machine or whether he used an inventory scanner,

but actually I think he did work for somebody where he used some sort of electronic

scanning device.

He also used words despite being essentially illiterate. Although he went to

the eleventh grade when he was expelled, he used words such as he indicated he had

been convicted of aggravated—a burglary in the past that he got three years

probation. He was actually proud of the fact that he had almost completed that

probation at the time I saw him in 2002.

He used words like—he did not know what medications he was taking at the

time I saw him, but he indicated he was taking them for depression, for sleep and he

was taking a mood stabilizer. Now, stabilizer is a pretty sophisticated word, if you

will. He also indicated his medical history that he had [an] injury to his testicles.

That’s not a word you commonly get from a retarded individual. That’s just some

examples why I did not think he was retarded.

At a subsequent hearing, the Defendant took the stand. The State’s withdrawal of their

intention to seek the death penalty was conditional on the Defendant’s assent to their late filing of

a notice that they would seek a penalty of life without the possibility of parole and their late filing

of a notice that they intended to impeach the Defendant with his prior convictions if he chose to

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testify. The Defendant was voir dired by his own attorney and testified that he understood these

terms of the State’s withdrawal of their intention to seek the death penalty and that he agreed to

them.

Mrs. Louise Love testified that the Defendant was her son. When the Defendant was six

years old, she was told that he had learning disabilities. Until then, she “never thought anything was

wrong with him.” He was in “special classes” when he was in school, but when he left school, he

was not able to read. He could not hold down a job because of his inability to “understand things.”

He received disability payments from the Social Security Administration because he was mentally

retarded. He previously had a job cleaning at a Wendy’s restaurant, but he was not able to hold the

job.

Mrs. Love informed that her husband was responsible for paying the rent and utilities at the

apartment in which the Defendant lived. She testified that her husband lived there with the

Defendant and that she lived at another location, but came by the apartment often. Mrs. Love

supported the Defendant by providing him with money, food, clothing and a place to live.

Lieutenant Mills testified at the hearing on the motion to suppress and described how he first

arrived at the Defendant’s apartment. His testimony on that point at the hearing was substantially

the same as his testimony on that issue at trial. However, he did provide more details about the

Defendant’s consent to the search. Lieutenant Mills testified that after the Defendant was discovered

hiding in a closet, he told Lieutenant Mills that he was aware that there was a warrant out for his

arrest. However, when Lieutenant Mills told the Defendant that he “wanted to talk to him about

something else[,]” the Defendant “indicated he knew what that was.”

Lieutenant Mills also testified that the Defendant agreed to allow the officers to search his

apartment by signing two separate consent to search forms. He said that an officer explained the first

consent to search form to the Defendant and that he appeared to understand it. Lieutenant Mills

explained how they used the form and why the Defendant agreed to it:

Well, we explained to him and read to him and told him what we wanted to

do and he agreed to it. And we just put it in layman’s terms that we were looking for

other items of evidence. And that if he didn’t want to sign, that’s fine too. We

would secure the apartment and go to a judge and get a search warrant and come back

and search it. And he just said “I’ll sign it.” So he went ahead and signed it.

The Defendant was “normal” and responsive when the officers asked him questions. They

also explained the second consent form to him and “there were no questions and he signed it.” In

addition, Lieutenant Mills testified that the form is “very simple,” saying that it is only “three or four

sentences.” The Defendant did not ask any questions or indicate that he did not understand.

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Lieutenant Mills stated that the first consent to search form was the Metropolitan Gang Unit’s

form and that the second form was the one normally used in the homicide division. Asked why he

utilized both forms to search the Defendant’s apartment, he explained that:

When we do things in the homicide division I like to keep our paperwork and

the gang squad has their own type of paperwork. And even though it’s the same

form, I just like to keep my forms. Everything I do I like to keep them and the way

I normally do them.

The apartment was “very small,” consisting of a living room, a kitchen, one bathroom and

one bedroom. While he was inside the Defendant’s apartment, Lieutenant Mills did not smell “the

odor of burnt marijuana” nor did he find any “roaches or burnt papers.” However, the search did

reveal the murder weapon, another handgun, marijuana, scales, “baggies,” and other evidence.

Lieutenant Mills testified that the consent to search forms were signed by the Defendant a

“short period” of time after he was discovered in the closet. He testified that “[a]fter everything was

secured,” and they were sure no one else was in the apartment, they began discussing the consent to

search forms in the living room.

Lieutenant Mills also testified regarding the Defendant’s waiver of his Miranda rights. After

the search, Lieutenant Mills took the Defendant and Ms. Cunningham to the police station, and he

took Ms. Cunningham’s statement first. Prior to taking the Defendant’s statement, the Defendant

was advised of his rights. The Defendant also signed a form indicating that he had been advised of

his Miranda rights, and Lieutenant Mills testified that he read the form to him before he signed it.

According to Lieutenant Mills, the Defendant appeared to understand his Miranda rights. He also

did not appear to be “high or otherwise intoxicated.” Lieutenant Mills testified that no promises or

threats were made to the Defendant in exchange for his statement and that he did not at any point

refuse to answer questions or request that a lawyer be present.

Lieutenant Mills testified that they asked the Defendant “general questions” unrelated to their

investigation prior to “Mirandizing” him. Once the audiotape recording began, they read the

Defendant his rights one time, and he “had a copy,” which he read as the rights were stated to him.

Lieutenant Mills said they did not further explain the rights to him because he did not ask any

questions, but rather, when he was asked if he understood his rights, he indicated that he did

understand them. They asked the Defendant if he wanted the rights re-read, and he answered, “No.”

He responded “normally” and answered questions “immediately” after they were asked.

Initially, Lieutenant Mills asked if the Defendant knew Shawn Williams, and “he went into a very

long statement on what happened that night.” Even when the detectives were not asking questions,

the Defendant would “continue to talk on his own.”

Kayla Cunningham testified for the defense at the suppression hearing that she and the

Defendant had been smoking marijuana approximately thirty minutes before the police arrived and

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arrested him. On cross-examination, she confirmed that she had visited the Defendant in jail “many

times” but denied that he had threatened to kill her if she “told anybody what he admitted to [her].”

Ms. Cunningham also testified that the Defendant threatened her with a gun the night before he was

arrested because she refused to go with him to an exotic dance club.

After hearing argument, the trial court ruled that the Defendant was competent to stand trial

and that his inculpatory statement was admissible at trial:

The [c]ourt feels that this [D]efendant was mentally capable of taking care of

himself. He was illiterate. He had a low IQ and all of that, but the [c]ourt has to note

that he was in a [sic] business apparently of selling dope. He had his own business.

He had guns and a girlfriend and worked a couple of places one time. Why he lost

his job, I don’t know. But he couldn’t read very good [sic] at all so that limited his

employment. So of course that [doesn’t]—that goes to his intelligence in regard to

understanding the written language.

The [c]ourt as to his—the [D]efendant’s statement on arrest, the [c]ourt finds

that this [D]efendant did understand his rights. They were read to him and explained

to him. And listening to the [D]efendant on the stand, the [c]ourt feels that he, in

fact, he kind of stopped me on something [that] he may not have understood and that

[defense counsel] was talking [to him] about, and so she reexplained it to him. And

so he had knowledge to blurt out things that he didn’t understand and ask about them.

And the [c]ourt feels that he did understand his rights that were read to him and

explained to him at the time.

And I don’t find that this statement was involuntarily given or he was

pressured to give this statement or I find that freely and voluntarily given by this

[D]efendant. And the [c]ourt feels that it is admissible in this case and will rule so.

The trial court further ruled that the Defendant validly consented to the search of his

apartment: “I found no defect in the [Defendant’s consent] when I heard that testimony. I’ve heard

nothing to the contrary. So [the] consent to search will stand as being valid in this matter.”

Standard of Review

In State v. Odom, 928 S.W.2d 18 (Tenn. 1996), our supreme court set out the standard of

review this Court uses in reviewing a trial court’s ruling on a motion to suppress evidence:

Questions of credibility of the witnesses, 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. 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 inferences that may be drawn from that evidence. So long as the

greater weight of the evidence supports the trial court’s findings, those findings shall

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be upheld. In other words, a trial court’s findings of fact in a suppression hearing

will be upheld unless the evidence preponderates otherwise.

Id. at 23; see also State v. Dych, 227 S.W.3d 21, 37 (Tenn. Crim. App. 2006). However, we review

the trial court’s application of the law to the facts de novo, without affording legal conclusions a

presumption of correctness. Dych, 227 S.W.3d at 37 (citing State v. Walton, 41 S.W.3d 75, 81

(Tenn. 2001)); see also State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

I. Validity of the Defendant’s consent to search

The Defendant contends that the trial court erred by admitting the evidence recovered during

the search of his apartment because his consent for the search was ineffective. The Defendant

contends that Lieutenant Mills’s testimony indicates that he did not explain the consent to search

forms to the Defendant and that Dr. Angelillo’s testimony establishes that the Defendant was not

capable of reading and understanding the forms himself. Essentially, the Defendant claims that, in

light of the whole record, and taking into account the Defendant’s possibly vulnerable subjective

state of mind, he did not “possess sufficient education, intelligence, knowledge or maturity to have

made a ‘free and unconstrained choice’ in the matter of his consent to the search of his apartment.”

(quoting State v. Cox, 171 S.W.3d 174, 184–85 (Tenn. 2005)).

A warrantless search conducted by state officials is presumed to be unreasonable under the

Fourth Amendment to the United States Constitution as well as Article I, section 7 of the Tennessee

Constitution,7 and the resulting evidence is subject to suppression unless the State demonstrates that

the search was conducted pursuant to one of the narrowly defined exceptions to the warrant

requirement. See Cox, 171 S.W.3d at 179. One well-established exception to the warrant

requirement exists when the subject of the search consents to it. Id. (citing State v. Bartram, 925

S.W.2d 227, 230 (Tenn. 1996)).

Whether an individual’s consent to a search was voluntary and within constitutional

boundaries “is a question of fact to be determined from the totality of the circumstances.” State v.

Scarborough, 201 S.W.3d 607, 623 (Tenn. 2006) (citing Schneckloth v. Bustamonte, 412 U.S. 218,

227 (1973)) (other citation omitted). To “pass constitutional muster, consent to search must be

unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.” State v.

Brown, 836 S.W.2d 530, 547 (Tenn. 1992) (citing Liming v. State, 417 S.W.2d 769, 770 (Tenn.

1967)); see also State v. Simpson, 968 S.W.2d 776, 784 (Tenn. 1998). However, it is not necessary

7

Our constitution states:

That the people shall be secure in their persons, houses, papers and possessions, from unreasonable

searches and seizures; and that general warrants, whereby an officer may be commanded to search

suspected places, without evidence of the fact committed, or to seize any person or persons not named,

whose offenses are not particularly described and supported by evidence, are dangerous to liberty and

ought not be granted.

Tenn. Const. art. I, § 7.

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that the officer inform the subject of his right to refuse consent. State v. Vaughn, 144 S.W.3d 391,

403 (Tenn. Crim. App. 2003) (citing United States v. Drayton, 536 U.S. 194, 206 (2002)). Given

the totality of the circumstances standard, whether consent is voluntary and effective is fact specific

to each case. See Cox, 171 S.W.3d at 185. The heart of the inquiry is “whether the defendant’s act

of consenting is the product of an essentially free and unconstrained choice. If the defendant’s will

was overborne and his or her capacity for self-determination critically impaired,” the constitution

is offended. Id. (citing Schneckloth, 412 U.S. at 225–26).

Factors that may be evaluated include: (1) the time and place of the encounter between the

subject and authorities; (2) whether the encounter was in a secluded or public place; (3) the number

of police officers present; (4) the degree of hostility; (5) whether weapons were displayed; (6)

whether consent was requested; and (7) whether the subject initiated contact with the police. Id.

This Court “may also consider the individual’s personal characteristics, including his or her age,

education, intelligence, knowledge, maturity, sophistication, experience, and prior contact with law

enforcement personnel.” Scarborough, 201 S.W.3d at 623. Another appropriate factor to consider

is a defendant’s “knowledge of his or her right to refuse consent.” Id.

In consideration of these and other factors, we conclude that the trial court did not err in

finding that the Defendant voluntarily and effectively consented to the search of his apartment. The

encounter between the policemen and the nineteen-year-old Defendant occurred in his own

apartment near midday. There is no indication in the record that the number of officers present was

inordinate or intimidating. Likewise, the record does not demonstrate that there was any hostility

at all between the policemen and the Defendant or that weapons were displayed; rather, the record

demonstrates that the Defendant was cooperative from the start. The police did initiate contact and

request the Defendant’s consent, but the record reflects that he gave it without hesitation (and with

knowledge that he had the right to refuse) by signing two separate forms. In addition, the Defendant

has a record of prior arrests and therefore has some experience interacting with law enforcement

personnel.

We have also considered the expert testimony presented by the Defendant at pretrial hearings

regarding his limited intellectual capacity, and it appears from this evidence that the Defendant is

not a particularly intelligent, sophisticated or mature individual. However, the testimony presented

by Dr. Angelillo did not conclusively establish that the Defendant was actually mentally retarded and

therefore unable to effectively consent to a search of his apartment. The trial court observed the

Defendant and heard him testify in open court, and the trial judge based his findings in part on his

personal observations of the Defendant. The Defendant’s intelligence is only one factor among

many that a Court considers when evaluating the validity of a consent to a search. In consideration

of the totality of the circumstances, we conclude that the trial court did not err in overruling the

Defendant’s motion to suppress the evidence recovered from his apartment.

II. Efficacy of the Defendant’s waiver of Miranda rights.

The Defendant also argues that the trial court erred in ruling that the Defendant voluntarily

and intelligently waived his Miranda rights. The Defendant stresses that Dr. Angelillo testified that

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the Defendant would not be able to understand the Miranda rights if they were read to him as a whole

and that the rights would have to be broken down individually for him to comprehend them. The

Defendant also points to Dr. Angelillo’s testimony that mentally retarded people acquiesce and

agree, looking for cues from people and saying “what it is they think that they want them to say.”

He notes that the State’s expert, Dr. Hutson, admitted that the Defendant was a “functioning

illiterate,” and that the trial court also recognized the Defendant’s limited ability to read and write.

In sum, the Defendant asserts that the evidence weighs against the trial court’s finding, and contends

that, “based on the totality of the evidence presented below, that the [D]efendant did not understand

his rights.”

A criminal defendant’s “right against compelled self-incrimination is protected by both the

federal and state constitutions.”8 State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000) (citing State

v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994)). Accordingly, pursuant to the United States

Supreme Court’s holding in Miranda v. Arizona, 384 U.S. 436 (1966), statements made by a

defendant during custodial interrogation are not admissible at trial unless the defendant was first

“warned that he has a right to remain silent, that any statement he does make may be used as

evidence against him, and that he has a right to the presence of an attorney, either retained or

appointed.” Id. at 444. After being notified of these rights, a defendant may waive them, “provided

the waiver is made voluntarily, knowingly, and intelligently.” Id. As our supreme court has

explained:

The relinquishment of the right must be voluntary in the sense that it is the product

of a free and deliberate choice rather than the product of intimidation, coercion or

deception. Moreover, the waiver must be made with full awareness of both the

nature of the right being abandoned and the consequences of the decision to abandon

it.

Stephenson, 878 S.W.2d at 544–45.

As with the validity of consent to search, in order to determine whether a defendant

effectively waived his Miranda rights, Tennessee courts look to the totality of the circumstances.

See Blackstock, 19 S.W.3d at 208. A defendant’s mental impairment or retardation is one factor that

can be considered. See id. (commenting on a number of cases from various jurisdictions where the

defendant’s intelligence was central to the court’s inquiry regarding the validity of a waiver of

Miranda rights.) The defendant’s cognitive abilities, however, must be considered along with a host

of other possible factors:

8

Article I, section 9 of the Constitution of the State of Tennessee provides:

That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel;

to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the

witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in

prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the county

in which the crime shall have been committed, and shall not be compelled to give evidence against

himself.

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Among the circumstances courts have considered are the defendant’s age,

background, level of functioning, reading and writing skills, prior experience with

the criminal justice system, demeanor, responsiveness to questioning, possible

malingering, and the manner, detail, and language in which the Miranda rights are

explained.

Id.

The Defendant was nineteen years old when he gave his statement, and the expert testimony

revealed he was not fully literate but did have a limited aptitude for the written language. As the

Defendant stresses, Dr. Angelillo did testify that the Defendant would not be able to understand his

Miranda rights if they were read to him all at once. However, Dr. Angelillo also testified, that even

after his interaction with the Defendant, there was no way anyone could know whether he understood

his rights when they were read to him on the day in question. Further, the Defendant’s low scores

on past IQ tests are contradicted by a score of eighty three, which he made five years before he gave

the statement. This highest IQ score included in the Defendant’s mental-health history is well above

the threshold delineating mental retardation.9

The trial court pointed to the Defendant’s ability to operate as a drug dealer and obtain other

employment as signs that he was not as mentally deficient as the defense suggested. The trial court

also noted that, based on observations of the Defendant during a voir dire, the Defendant was able

to interject and ask questions when he did not understand something. Lieutenant Mills testified that

after reading the Defendant his rights, the Defendant indicated that he did not have any questions and

declined to have the rights re-read. Further, his responses to questions were prompt and detailed.

He was able to provide a coherent and logical narrative of the chain of events that led to his murder

of the victims. As such, we must conclude that, based on the totality of the circumstances, the trial

court did not err in ruling that the Defendant knowingly, intelligently, and voluntarily waived his

Miranda rights. See State v. Latonya Taylor, No. M2005-00313-CCA-R3-CD, 2006 WL 2206064,

at *4 (Tenn. Crim. App., Nashville, July 31, 2006).

In closing, we note a clerical error in the judgment of conviction for first degree murder in

count two, for which the Defendant received a sentence of life without parole. The trial court did

not check the box indicating that the jury found the Defendant guilty. We remand to the trial court

for correction of this error.

Conclusion

We conclude that the trial court did not err by finding that the Defendant effectively

consented to the search of his apartment and validly waived his Miranda rights, and we affirm the

judgments of the trial court. We remand this case for entry of a corrected judgment reflecting a

finding of “guilty” in count two for which the Defendant was sentenced to life without parole.

9

The Defendant’s expert testified that for a person to be considered mentally retarded, the person must score

below seventy on a W echsler Adult Intelligence Scale test. See also Tenn. Code Ann. § 39-13-203(a)(1).

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______________________________

DAVID H. WELLES, JUDGE

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