State of Tennessee v. Garner Dwight Padgett

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 11, 2004 Session

STATE OF TENNESSEE v. GARNER DWIGHT PADGETT

Appeal from the Criminal Court for Putnam County

No. 01-0450 Leon Burns, Jr., Judge

No. M2003-00542-CCA-R3-CD - Filed October 21, 2004

The defendant, Garner Dwight Padgett, was convicted of first degree premeditated murder. The trial

court imposed a sentence of life imprisonment. In this appeal of right, the defendant contends that

the trial court erred by failing to grant a mistrial after two jurors observed him in custody, by failing

to instruct on the lesser included offenses of aggravated assault and assault, and by failing to

suppress his confession. He also challenges the sufficiency of the evidence and argues that there was

prosecutorial misconduct during closing argument. The judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT

W. WEDEMEYER , JJ., joined.

David Brady, District Public Defender, and John B. Nisbet, III, Assistant Public Defender, for the

appellant, Garner Dwight Padgett.

Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant, Assistant Attorney General;

William E. Gibson, District Attorney General; and David A Patterson, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The twenty-six-year-old victim, Matthew Eric Smith, who lived with his parents in

Cumberland County, was last seen alive at approximately 7:00 p.m. on Friday, March 2, 2001.

Several days later, the victim’s father, Frank Smith, saw the victim’s vehicle, a red convertible

Mustang, being driven by a woman later identified as Vicki1 Eldridge, the wife of the defendant. The

family reclaimed the vehicle six days after the victim’s disappearance and on the next day, Sharon

Smith, the victim’s mother, reported to the authorities that the victim was missing.

1

Her name also appears in the record spelled “Vicky.”

The body was discovered in a remote wooded area known as Glade Creek. Officers found

two .22 shell casings near the body and a bullet embedded in the left side of the victim’s jacket hood.

During the course of the investigation, TBI Agent Bob Krofssik questioned the defendant. After

making several conflicting claims, the defendant acknowledged having lied to the agent and

confessed to the murder. The defendant admitted having stolen a .22 caliber Browning pistol from

Steve Golden approximately two weeks before the shooting. He stated that he met the victim at

Vicki Eldridge’s trailer on a Saturday night and initially introduced himself as her cousin. The

defendant recalled that the victim, who never identified himself, told him that “Vicky had his damn

car and was out running around” and complained that he had been abandoned in the woods by “one

of the Robbins boys.” The defendant informed the officer that he and the victim had smoked some

methamphetamine from a pipe and that he later drove Ms. Eldridge’s truck as the victim provided

directions to “some [more methamphetamine] stashed in the woods.” The defendant told the agent

that the victim, who claimed to be having a sexual relationship with Ms. Eldridge, “dogg[ed]” her

and described her as a “whore.” The defendant contended that when he then informed the victim

that he was Ms. Eldridge’s husband so that “he would shut up about Vicky,” the victim continued

to “talk[] bad” about her. According to the defendant, the two men got out of the truck and the

victim “kick[ed] leaves around” and “bent over at the waist” to look for the drugs. The defendant

informed the officer that he got “spooked,” pulled the gun from his belt, and then shot the victim

above the right ear. The defendant recalled that he drove to a friend’s residence where he admitted

that he had “killed a boy.” He also informed Agent Krofssik that several hours later he called the

sheriff’s department and asked for an officer to give him a ride. According to the defendant, he then

threw the gun away in a swampy, wooded area off the side of a roadway. He claimed that his actions

had been motivated by his love for Ms. Eldridge and his fear of the victim.

Agent Krofssik collected four .22 caliber shell casings at the residence of Jack Baker, where

the defendant claimed to have fired the stolen weapon. Although the agent was unable to find

methamphetamine near the body, he confirmed that a glass pipe had been in the victim’s possession

at the time of his death. At trial, the agent testified that officers found a Browning .22 caliber

automatic pistol on the side of Highway 70 in the area where the defendant said he had disposed of

the murder weapon.

Cumberland County Sheriff’s Deputy Scott Jones, who at 2:00 a.m. on the morning of the

shooting had been dispatched to Highway 70 North in Cumberland County to assist a 911 caller

requesting a ride, drove the defendant to Sandy Creek Road. It was his opinion that the defendant,

who was carrying a cellular phone and a duffel bag, was not under the influence of any intoxicants.

The deputy recalled that the defendant claimed to have been involved in an argument with his wife

and left “before things had got too heated.”

In the two months prior to the murder, the defendant had helped James Ralph Bryant with

a construction project at the residence of Steve Golden, in Nashville. During that time, the

construction crew lived in the empty Golden residence and the defendant had confided that he

planned to kill his wife’s lover, explaining that “he wouldn’t go to jail long because he’d get out on

his being mentally ill or sick.” According to Bryant, the defendant failed to report for work during

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the last ten days to two weeks of the job. Bryant identified the Browning .22 recovered from the side

of Highway 70 as being similar to a gun that he had purchased and then later traded to Steve Golden.

Bryant’s wife, Connie Bryant, confirmed that approximately three weeks before the body was

found, the defendant told her that his wife was having an affair and that he intended to kill her lover.

When she counseled the defendant against his plan, he replied that “he would never go to jail over

killing somebody because he’d been in Moccasin Bend before and that’s where they would send him

again.”

At trial, Steve Golden testified that the Browning .22 recovered from the roadside, which had

a distinguishing yellow mark, appeared to be his gun. Two to three weeks before the body was

found, Jack Baker had seen the defendant with a black semi-automatic .22 caliber pistol with a four-

to-six-inch barrel. He remembered that he and the defendant had fired the weapon and that officers

later collected the spent shells from the Baker property.

After testing the pistol and spent shells, Agent Shelly Betts, a firearms examiner with the

TBI, determined that the shells found at the crime scene and the Baker property were consistent with

Winchester manufacture and had been fired by the Browning pistol. Agent Betts concluded that the

bullet recovered from the victim’s hood and the two from the body had the same “class

characteristics” as the Browning and that they were also consistent with Winchester manufacture.

Dr. Charles Harlan, who performed the autopsy, testified at trial that the victim had three

gunshot wounds to the head, any one of which would have been fatal. Two of the three bullets were

found in the body. Decomposition of the body was consistent with its having been outdoors for

approximately one week during the month of March. The blood tests indicated that the victim had

used methamphetamine before his death.

The defense did not offer any testimony at the trial.

I

Initially, the defendant argues that the trial court erred by not granting a mistrial on the basis

that two jurors saw him in custody during the course of the trial. After a lunch break, one of the

female jurors asked the bailiff about a door leading to the lock-up area. The bailiff answered that

it led to “where [they] keep the people that come[] up from the jail” and offered her and another juror

the opportunity to look. When he opened the door, the area was empty. In the meantime, the

elevator doors opened as a jailer was escorting the defendant to the courtroom. The defendant, who

was dressed in a sport coat and tie, was not handcuffed, shackled or restrained in any way. The jailer

quickly closed the elevator doors.

Due process requires that the accused be afforded the “physical indicia of innocence.”

Kennedy v. Cardwell, 487 F.2d 101, 104 (6th Cir. 1973). The use of shackles during a trial, for

example, has been specifically condemned absent certain safeguards designed to assure that it would

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not influence the issue of innocence or guilt. Willocks v. State, 546 S.W.2d 819, 822 (Tenn. Crim.

App. 1976); see generally State v. Smith, 639 S.W.2d 677 (Tenn. Crim. App. 1982).

“The entry of a mistrial is appropriate when the trial cannot continue for some reason, or if

the trial does continue, a miscarriage of justice will occur.” State v. McPherson, 882 S.W.2d 365,

370 (Tenn. Crim. App. 1994). The decision to grant a mistrial is within the sound discretion of the

trial court, and this court will not disturb the trial court’s determination unless a clear abuse of

discretion appears on the record. Id.

Immediately upon learning of the event at issue, the trial court conducted a full hearing on

the matter. The two jurors swore under oath that their judgment would not be affected. Because

other jurors were aware that the two jurors had seen the defendant in the elevator, the trial court

provided a curative instruction. All of the jurors agreed to disregard the defendant’s brief presence

in the lockup area and otherwise follow the instructions of the trial court. Because there is a

presumption that the jurors followed the instructions of the trial court and because the record does

not establish that the defendant was unduly prejudiced, there was no abuse of discretion by the denial

of a mistrial.

II

Next, the defendant contends that the trial court erred by not instructing the jury on the lesser

included offenses of aggravated assault and assault. The state asserts that the offenses are not lesser

includeds of first degree murder and that any error would have been harmless beyond a reasonable

doubt.

The question of whether a given offense should be submitted to the jury as a lesser included

offense is a mixed question of law and fact. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001) (citing

State v. Smiley, 38 S.W.3d 521 (Tenn. 2001)). The standard of review for mixed questions of law

and fact is de novo with no presumption of correctness. Id.; see also State v. Burns, 6 S.W.3d 453,

461 (Tenn. 1999). The trial court has a duty “to give a complete charge of the law applicable to the

facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P.

30.

In Burns, our supreme court adopted a modified version of the Model Penal Code in order

to determine what constitutes a lesser included offense:

An offense is a lesser included offense if:

(a) all of its statutory elements are included within the statutory elements of the

offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that it contains a

statutory element or elements establishing

(1) a different mental state indicating a lesser kind of culpability; and/or

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(2) a less serious harm or risk of harm to the same person, property or public interest,

or

(c) it consists of

(1) facilitation of the offense charged or of an offense that otherwise meets the

definition of lesser included offense in part (a) or (b); or

(2) an attempt to commit the offense charged or an offense that otherwise meets the

definition of lesser included offense in part (a) or (b); or

(3) solicitation to commit the offense charged or an offense that otherwise meets the

definition of lesser included offense in part (a) or (b).

6 S.W.3d at 466-67.

The trial court has a duty to instruct the jury as to a lesser included offense if: (1) reasonable

minds could accept the offense as lesser included; and (2) the evidence is legally sufficient to support

a conviction for the lesser included offense. Burns, 6 S.W.3d at 469; see also State v. Langford, 994

S.W.2d 126, 128 (Tenn. 1999). Moreover, our supreme court has held that trial courts “must provide

an instruction on a lesser-included offense supported by the evidence even if such instruction is not

consistent with the theory of the [s]tate or of the defense. The evidence, not the parties, controls

whether an instruction is required.” State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002). Our high

court observed that the “jury is not required to believe any evidence offered by the [s]tate,” and held

that the authority of the jury to convict on a lesser-included offense may not be taken away, even

when proof supporting the element distinguishing the greater offense from the lesser offense is

uncontroverted. Id. at 189.

In support of his position, the defendant cites State v. Paul Graham Manning, No. M2002-

00547-CCA-R3-CD (Tenn. Crim. App., at Nashville, Feb. 14, 2003), perm. app. denied (Tenn. Dec.

15, 2003), in which a panel of this court held that the trial court erred by failing to instruct the jury

on aggravated assault and assault as lesser included offenses of premeditated murder. While finding

the error to be harmless beyond a reasonable doubt, the court ruled in Manning as follows:

As set forth above, first degree premeditated murder is the “premeditated and

intentional killing of another.” An aggravated assault is committed, on the other

hand, when the accused intentionally, knowingly, or recklessly causes serious bodily

injury to another. Similarly, an assault is committed when one “[i]ntentionally,

knowingly or recklessly causes bodily injury to another.” The mens rea of intentional

includes the mens reas of knowing and reckless. A killing certainly includes serious

bodily injury (as well as “mere” bodily injury). Thus, all of the statutory elements

of these forms of aggravated assault and assault are included within the statutory

elements of first degree premeditated murder, and they are therefore lesser-included

offenses under part (a) of the Burns test. The trial court therefore erred when it failed

to instruct the jury on these forms of aggravated assault and assault.

Manning, slip op. at 7 (citations and footnote omitted).

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The majority of a separate panel of this court, however, has held that aggravated assault and

assault are not lesser included offenses of premeditated murder. In State v. John C. Walker, III, No.

M2003-01732-CCA-R3-CD (Tenn. Crim. App., at Nashville, Aug. 11, 2004), the rationale for the

holding in Manning was rejected:

An accused in a criminal prosecution has the right to receive advance notice

of the charges he or she must defend upon. Tenn. Const. art. 1, § 9. When a

defendant is indicted for murder, the defendant is placed upon notice that he or she

will be required to answer to the charge or some lesser degree of homicide as raised

by the proof at trial. Criminal homicide is defined as the unlawful killing of another

person, which may be first degree murder, second degree murder, voluntary

manslaughter, criminally negligent homicide, or vehicular homicide. Tenn. Code

Ann. § 39-13-201. Aggravated assault is an assault accompanied by serious bodily

injury or use of a deadly weapon. Tenn. Code Ann. § 39-13-102(a). Burns part (a)

provides that aggravated assault is a lesser if all the “statutory elements are included

within the statutory elements” of first degree murder. Burns, 6 S.W.3d at 466. The

indictment in this case alleges an intentional and premeditated killing of the victim.

It contains no reference to serious bodily injury or use of a deadly weapon. Clearly,

none of the elements of aggravated assault are alleged in the indictment nor are these

elements included within the statutory elements of first degree murder. Likewise, the

elements of the various forms of assault, i.e., (1) bodily injury, (2) fear of imminent

bodily injury and (3) physical contact regarded as extremely offensive or provocative,

are not alleged in the indictment and are clearly not elements of first degree murder.

See Tenn. Code Ann. § 39-13-101 (a)(1)-(3). For this reason, we conclude that

neither aggravated assault nor assault are lesser included offenses of first degree

murder under Burns. Thus, the trial court did not err in failing to charge these crimes

to the jury.

Slip op. at 11-12.

Whether the rule in Manning or Walker is applicable, the defendant here would not be

entitled to a new trial for failure to charge aggravated and simple assault. If error at all, the error was

harmless beyond a reasonable doubt. See State v. David Wayne Smart, No. M2001-02881-CCA-R3-

CD (Tenn. Crim. App., at Nashville, May 13, 2003) (holding that any error by failing to charge

aggravated assault and assault as lesser included offenses of premeditated murder was harmless

beyond a reasonable doubt). In this case, the trial court instructed the jury on the charged offense

of premeditated murder as well as the lesser included offenses of second degree murder, voluntary

manslaughter, reckless homicide, and criminally negligent homicide. By finding the defendant guilty

of premeditated murder, the jury implicitly rejected four lesser included offenses. See Allen, 69

S.W.3d at 189; Manning, slip op. at 8. The evidence of murder was simply overwhelming. The

proof established that the defendant drove the victim to a remote area, shot him in the head three

times, and then abandoned the body. Under these circumstances, it is our conclusion that any error

by virtue of the failure to charge either aggravated assault or simple assault was harmless beyond a

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reasonable doubt.

III

The defendant next argues that the evidence was insufficient to establish premeditation. On

appeal, of course, the state is entitled to the strongest legitimate view of the evidence and all

reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the

reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.

State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing the evidence in the light most favorable

to the state, any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

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. Liakas v. State, 199 Tenn.

298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt removes the 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. Evans, 838 S.W.2d 185, 191

(Tenn. 1992).

First degree murder is defined as:

(1) A premeditated and intentional killing of another;

(2) A killing of another committed in the perpetration of or attempt to

perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping,

aggravated child abuse, aggravated child neglect or aircraft piracy; or

(3) A killing of another committed as a result of the unlawful throwing,

placing or discharging of a destructive device or bomb.

Tenn. Code Ann. § 39-13-202(a) (Supp. 2000). Tennessee Code Annotated section 39-13-202(d)

provides that:

[P]remeditation is an act done after the exercise of reflection and judgment.

“Premeditation” means that the intent to kill must have been formed prior to the act

itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused

for any definite period of time. The mental state of the accused at the time the

accused allegedly decided to kill must be carefully considered in order to determine

whether the accused was sufficiently free from excitement and passion as to be

capable of premeditation.

Tenn. Code Ann. § 39-13-202(d) (1997). Whether the evidence was sufficient depends entirely on

whether the state was able to establish beyond a reasonable doubt the element of premeditation. See

State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

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Our supreme court has held that the presence of premeditation is a question for the jury and

may be inferred from the manner and circumstances of the killing. See State v. Suttles, 30 S.W.3d

252, 261 (Tenn. 2000); State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998). Moreover, it is well-

established that premeditation may be proved by circumstantial evidence. See, e.g., State v. Brown,

836 S.W.2d 530, 541 (Tenn. 1992). Our high court has identified a number of circumstances from

which the jury may infer premeditation: (1) the use of a deadly weapon upon an unarmed victim; (2)

the particular cruelty of the killing; (3) the defendant's threats or declarations of intent to kill; (4) the

defendant's procurement of a weapon; (5) any preparations to conceal the crime undertaken before

the crime is committed; (6) destruction or secretion of evidence of the killing; and (7) a defendant's

calmness immediately after the killing. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); Pike,

978 S.W.2d at 914-15. This list, however, is not exhaustive and serves only to demonstrate that

premeditation may be established by any evidence from which the jury may infer that the killing was

done “after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d); see Pike,

978 S.W.2d at 914-15; Bland, 958 S.W.2d at 660.

One treatise suggests that premeditation may be inferred from events that occur before and

at the time of the killing:

Three categories of evidence are important for [the] purpose [of inferring

premeditation]: (1) facts about how and what the defendant did prior to the actual

killing which show he was engaged in activity directed toward the killing, that is,

planning activity; (2) facts about the defendant's prior relationship and conduct with

the victim from which motive may be inferred; and (3) facts about the nature of the

killing from which it may be inferred that the manner of killing was so particular and

exacting that the defendant must have intentionally killed according to a

preconceived design.

2 Wayne R. LaFave, Substantive Criminal Law § 14.7(a) (2d ed. 2003) (emphasis in original).

In this case, there was evidence that the defendant, aware that his wife was having an affair,

had voiced to both Ralph and Connie Bryant that he intended to kill her lover. The Bryants

attempted to dissuade him from his plans. The was proof that two or three weeks before the

shooting, the defendant stole the .22 caliber Browning pistol from the Golden residence just before

quitting a construction job in Nashville and returning to Putnam County. The defendant admitted

shooting the victim and later disposing of the murder weapon alongside a rural highway. That the

defendant had the presence of mind to call 911 for a ride from a sheriff’s deputy without arousing

suspicion suggests a calm demeanor after the crime. In our view, there is sufficient evidence in the

record to support a finding of premeditation.

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IV

Next, the defendant contends that the trial court should have suppressed his statements to

police because the circumstances establish that they were coerced. The state argues that the

defendant waived the issue by failing to timely raise it in a motion for new trial.

Tennessee Rule of Criminal Procedure 33(b), which governs the time for filing a motion for

new trial, provides as follows:

A motion for a new trial shall be made in writing, or if made orally in open

court shall be reduced to writing, within thirty days of the date the order of sentence

is entered. The [c]ourt shall upon motion allow amendments liberally until the day

of the hearing of the motion for a new trial.

The record reflects that the judgment of conviction was filed on October 8, 2002. The

defendant’s motion for new trial, filed two days later, does not include as a ground for relief that the

trial court failed to suppress the statements. At the hearing on the motion for new trial some four

months later, however, defense counsel raised the issue and the trial court instructed him to amend

the motion for new trial. An amended motion was filed on that date. The state did not object.

There was a full hearing on the motion to suppress. Detective Jerry Dale Abston of the

Putnam County Sheriff’s Department testified that he witnessed statements taken from the defendant

by Agent Krofssik on March 24 and March 27, both of which were made in the conference room of

the justice center. He recalled that the defendant, who received no promises of leniency, was

cooperative, responding coherently and without difficulty. The detective confirmed that Agent

Krofssik had provided the defendant with Miranda warnings and that the defendant never indicated

that he wished to stop the interviews or have an attorney present. The detective recalled that the

defendant acknowledged that he had been drinking prior to the March 24th interview but denied the

use of any drugs. It was the detective’s opinion that the defendant was not intoxicated at that time.

Detective Abston testified that Agent Krofssik wrote out the defendant’s statement longhand and that

the statement was then read back to the defendant, who was given the opportunity to make

corrections. He had no recollection of any request by the defendant to tape the interviews and

insisted that the defendant had, in fact, declined to be taped because the recorder made him

uncomfortable. The detective acknowledged that at the time of the first interview, the defendant

mentioned that he had bipolar disorder. He remembered that the defendant repeatedly denied the

need for any medication or treatment. Detective Abston denied that either he or Agent Krofssik had

threatened to throw the defendant down the stairwell at the justice center or had otherwise coerced

the confession.

Agent Krofssik corroborated the testimony of Detective Abston. He recalled that on the

second interview day, the defendant mentioned that he was not taking his medication but “indicated

that it didn’t affect his understanding of what our conversation was about.”

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Eric Engum, a Ph.D. psychologist, performed psychological and neuropsychological

evaluations of the defendant. He determined that the defendant was first treated for alcohol and drug

abuse in 1994 and was hospitalized on an emergency basis in February of 2000 when he began

experiencing, among other things, severe mood swings, temper outbursts, and disorganized thought

processes. The medical history of the defendant indicated bipolar affective disorder and

polysubstance abuse. Engum testified that shortly after the arrest of the defendant, he was diagnosed

with schizo-affective disorder, bipolar type, and put on a medication regiment consisting of Effexor,

Seroquel, and Eskalith, which lessened his symptoms. He found the defendant had difficulty

sustaining concentration, organizing his thoughts, and engaging in abstract reasoning. According

to Engum, he diagnosed the defendant as having bipolar disorder in partial remission, alcohol

dependence in early full remission, and a mixed personality disorder with avoidant, depressive, and

paranoid features. With regard to the defendant’s ability to voluntarily waive his rights, he testified

that “knowing what we know about [bipolar disorder] symptoms, it would seriously raise a question

in my mind as to whether he was able to make a voluntary waiver. And that’s as far as I can go.”

During cross-examination, Engum acknowledged that he had found evidence of symptom

magnification, or “reporting symptoms . . . in stronger terms than might be uncovered upon objective

review.”

The defendant testified at the suppression hearing that he “really started drinking hard” in

1988 and that he first received treatment for alcoholism in 1994 at Plateau when he was convicted

of third offense driving under the influence. He stated that although he had also received treatment

at McFarland and New Life Lodge, his problems continued and, in February of 2000, he was

committed to Lakeshore Mental Heath Center in Knoxville, where he stayed for five days. The

defendant contended that on the day of his arrest, he drank a gallon of whiskey and smoked

methamphetamine. According to the defendant, when Detective Abston telephoned him that there

was a warrant for his arrest, he responded that he had been drinking and would turn himself in to

Officer Bill Parrott. He claimed that the last thing he recalled was getting into the back seat of

Officer Parrott’s cruiser, unable to walk, and that the police “didn’t even book [him].” The

defendant testified that he remembered the second set of interviews with police “somewhat,” but that

he was not feeling well because he had been hallucinating, “seeing snakes in [his] walls and spiders

coming out of [his] drain.” He insisted that he was afraid that Detective Abston, and Agent Krofssik

were going to throw him down the stairwell because one of them had mentioned that “[i]t was a long

ways down.” The defendant acknowledged, however, that early in the interview process, he took

breaks in the conference room rather than the stairwell. He claimed that he had asked for the

interviews to be tape recorded. While acknowledging that he had signed and initialed the written

statements, he contended that Agent Krofssik had not read the statements to him and that the

documents were only drafts.

The trial court denied the motion to suppress, finding that the defendant’s statements were

voluntary and ruling as follows:

[W]e are dealing with a question of the voluntariness of a confession and the totality

of the circumstances is the standard. Under the circumstances of how the statement

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was allegedly made on the 27th, there would be nothing to indicate from the testimony

of [the defendant] or from the testimony of the officers that something transpired that

would over bear the will of the accused in this case in some sort of a threatening way.

* * *

I don’t think anybody can dispute the diagnosis. . . . But that in itself does not

render any statement given to be voluntary or any waiver to be unknowing.

And all of the proof here that I’ve heard this morning would indicate that the

defendant understood his rights. He waived his rights. And he gave a statement that

he signed off on those rights. . . .

And . . . the totality [of the] the circumstances would indicate . . . that there

was a voluntary and knowing waiver of the rights and a voluntary statement given.

...

The trial court also questioned the credibility of the defendant, observing that he appeared to “have

some selective memory loss.”

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

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

determination that a confession was given knowingly and voluntarily is binding on the appellate

courts unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996). Questions about witness credibility and “resolution of conflicts in the evidence are matters

entrusted to the trial judge.” Id. Testimony presented at trial may be considered by an appellate

court in deciding the propriety of the trial court’s ruling on a motion to suppress. State v. Henning,

975 S.W.2d 290, 299 (Tenn. 1998). If the “greater weight” of the evidence supports the court’s

ruling, it will be upheld. Id. Yet, this court must conduct a de novo review of the trial court’s

application of law to fact. State v. Bridges, 963 S.W.2d 487 (Tenn. 1997); State v. Yeargan, 958

S.W.2d 626 (Tenn. 1997).

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

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

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

not admissible in trial. Dickerson v. United States, 530 U.S. 428 (2000); Stansbury v. California,

511 U.S. 318, 322 (1994). A defendant’s rights to counsel and against self-incrimination may be

waived as long as the waiver is made “voluntarily, knowingly, and intelligently.” Miranda, 384 U.S.

at 479; State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). In order for an accused to effect

a waiver, he must be adequately appraised of his right to remain silent and the consequence of

deciding to abandon it. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). In determining

whether a confession was voluntary and knowing, the totality of the circumstances must be

examined. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997).

Although three handwritten statements signed by the defendant are in the record, only the last

statement was introduced at trial. The statement, which has been summarized in this opinion, was

taken on March 27 at 11:38 p.m., shortly after the defendant asked to speak with the officers for a

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second time that evening. By refusing to suppress, the trial court implicitly accredited the testimony

of Detective Abston and Agent Krofssik that the defendant was coherent and responsive at the time

of the interview, that he understood his Miranda rights, and that he knowingly and voluntarily

waived those rights. A completed TBI Miranda warnings form bearing the defendant’s signature

appears in the record. The trial court specifically found that the defendant’s testimony lacked

credibility, the defendant having “selective memory loss” as to the circumstances surrounding his

arrest and his sworn statements to the officers. In our view, the evidence does not preponderate

against the trial court’s determination that the statement was knowingly and voluntarily provided to

the interrogating officers.

V

Finally, the defendant contends that the prosecutor was guilty of misconduct during the

closing argument. He specifically complains about the following comments:

You know . . . I’m looking at that scene . . . and I can’t think of a better place

to kill somebody. It’s ten miles from nowhere, out in the boonies, and then almost

100 yards, almost 300 feet down a dirt road where there’s no chance of being seen.

There’s no chance of having witnesses. I can’t think of a better place in the whole

wide world to take somebody to kill them if that’s what your purpose is.

Not a good place to hide your dope. People hide dope off of their property

but close to their home. They don’t have to drive.

And isn’t it interesting too who was doing the driving? The defendant was

driving the truck that night and his victim was in the passenger seat. And I suggest

to you that you can assume that the defendant was in there at gunpoint being driven

to – (Interrupted)

(Emphasis added.)

Trial courts have substantial discretionary authority in determining the propriety of final

argument. Although counsel is generally given wide latitude, courts must restrict any improper

argument. Sparks v. State, 563 S.W.2d 564 (Tenn. Crim. App. 1978). Generally speaking, closing

argument “must be temperate, must be predicated on evidence introduced during the trial of the case,

and must be pertinent to the issues being tried.” State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978).

For example, our supreme court has ruled that argument that “that defense counsel was ‘trying to

throw sand in the eyes of the jury’ and ‘blowing smoke in the face of the jury’” was improper

argument. State v. West, 767 S.W.2d 387, 395 (Tenn. 1989). To merit a new trial, however, the

argument must be so inflammatory or improper as to affect the verdict. Harrington v. State, 215

Tenn. 338, 385 S.W.2d 758 (1965). In Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App.

1976), this court articulated the factors to be considered in making that determination:

(1) the conduct complained of viewed in the context and the light of the facts and

circumstances of the case;

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(2) the curative measures undertaken by the court and the prosecution;

(3) the intent of the prosecutor in making the improper statements;

(4) the cumulative effect of the improper conduct and any other errors in the record;

and

(5) the relative strength or weakness of the case.

Most restrictions during final argument are placed upon the state. That is based in great

measure upon the role of the prosecutor in the criminal justice system:

[The prosecutor] is the representative not of an ordinary party to a controversy, but

of a sovereignty whose obligation to govern impartially is as compelling as its

obligation to govern at all; and whose interest, therefore, in a criminal prosecution

is not that it shall win a case, but that justice shall be done. As such, he is in a

peculiar and very definite sense the servant of the law, the two fold aim of which is

that guilt shall not escape or innocence suffer. He may prosecute with earnestness

and vigor, indeed he should do so. But, while he may strike hard blows, he is not at

liberty to strike foul ones. It is as much his duty to refrain from improper methods

calculated to produce a wrongful conviction as it is to use every legitimate means to

bring about a just one. It is fair to say that the average jury, in a greater or lesser

degree, has confidence that these obligations, which so plainly rest upon the

prosecuting attorney, will be faithfully observed. Consequently, improper

suggestions, insinuations, and especially assertions of personal knowledge are apt to

carry much weight against the accused when they should properly carry none.

Berger v. United States, 295 U.S. 78, 88 (1935); see also Judge, 539 S.W.2d at 344-45. Thus, the

state must refrain from argument designed to inflame the jury and should restrict its commentary to

matters in evidence or issues at trial. The prosecutor must not express a personal belief or opinion,

but whether that qualifies as misconduct often depends upon the specific terminology used. For

example, argument predicated by the words “I think” or “I submit” does not necessarily indicate an

expression of personal opinion. United States v. Stulga, 584 F.2d 142 (6th Cir. 1978). The

prosecution is not permitted to reflect unfavorably upon defense counsel or the trial tactics employed

during the course of the trial. See Dupree v. State, 219 Tenn. 492, 410 S.W.2d 890 (1967); Moore

v. State, 159 Tenn. 112, 17 S.W. 30 (1929); Watkins v. State, 140 Tenn. 1, 203 S.W. 344 (1918);

McCracken v. State, 489 S.W.2d 48 (Tenn. Crim. App. 1972). Although there may be no

commentary on the consequences of an acquittal, the prosecution may point out the gravity of a

particular crime and emphasize the importance of law enforcement. See State v. Dakin, 614 S.W.2d

812 (Tenn. Crim. App. 1980); Bowling v. State, 3 Tenn. Crim. App. 176, 458 S.W.2d 639 (1970).

This court has observed that there are five generally recognized areas of prosecutorial

misconduct related to closing argument:

1. It is unprofessional conduct for the prosecutor intentionally to misstate the

evidence or mislead the jury as to the inferences it may draw.

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2. It is unprofessional conduct for the prosecutor to express his personal belief or

opinion as to the truth or falsity of any testimony or evidence or the guilt of the

defendant.

3. The prosecutor should not use arguments calculated to inflame the passions or

prejudices of the jury.

4. The prosecutor should refrain from argument which would divert the jury from its

duty to decide the case on the evidence, by injecting issues broader than the guilt or

innocence of the accused under the controlling law, or by making predictions of the

consequences of the jury’s verdict.

5. It is unprofessional conduct for a prosecutor to intentionally refer to or argue facts

outside the record unless the facts are matters of common public knowledge.

State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003).

Because there was no evidence that the defendant held the victim at gunpoint at any time, the

prosecutor’s suggestion that the jury assume that fact was improper. Nevertheless, it does not require

the grant of a new trial. While overstating the supporting facts, the argument did not qualify as a

gross exaggeration. Defense counsel objected immediately, interrupting the state’s attorney, and the

trial court sustained the objection, instructing the jury to disregard the remark. There is no indication

that the prosecutors’s error was intentional or meant to unfairly prejudice the defendant. An

overzealous or overly partisan interpretation of the evidence often discredits the validity of the

argument. Evidence of guilt included confessions to the police and others. Application of the

Judge factors favor the state. A new trial is not warranted under these circumstances.

Accordingly, the judgment of the trial court is affirmed.

___________________________________

GARY R. WADE, PRESIDING JUDGE

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