State of Tennessee v. Ricky A. Burks

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 14, 2001 Session

STATE OF TENNESSEE v. RICKY A. BURKS

Direct Appeal from the Criminal Court for Davidson County

No. 99-A-133 Walter Kurtz, Judge

No. M2000-00345-CCA-R3-CD - Filed May 25, 2001

Ricky A. Burks was convicted by a Davidson County jury of the first-degree murder of his wife. The

trial court granted Burks’ motion for judgment of acquittal and entered a judgment for second-degree

murder. Following a sentencing hearing, the trial court sentenced Burks, as a range II offender, to

forty years confinement in the Department of Correction. Burks now appeals both the judgment of

conviction and the sentence entered by the Davidson County Criminal Court, challenging the trial

court’s (1) denial of his motions to suppress; (2) admission of prior bad acts of the defendant; (3)

jury instructions regarding prior bad acts; (4) admission of autopsy photographs of the victim; (5)

refusal to instruct on the lesser-included offense of reckless homicide; (6) finding that the evidence

is sufficient to support a conviction of second-degree murder; and (7) imposition of the maximum

sentence of forty years. The State cross-appeals challenging the trial court’s ruling in reducing the

jury’s verdict of first-degree murder to that of second-degree murder. Finding no error, we affirm.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and

JOHN EVERETT WILLIAMS, JJ., joined.

C. Dawn Deaner, Assistant Public Defender (on appeal), Nashville, Tennessee; Jeffrey A.

DeVasher, Assistant Public Defender (at trial), Nashville, Tennessee, for the Appellant, Ricky A.

Burks.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T.

Ryan, Assistant Attorney General, and Katrin Novak Miller, Assistant District Attorney General, for

the Appellee, State of Tennessee.

OPINION

The Appellant, Ricky A. Burks, was convicted by a jury of murder in the first degree and

sentenced to life imprisonment.1 Pursuant to Rule 29 of the Tennessee Rules of Criminal Procedure,

the trial court set aside the jury's verdict finding that the evidence was legally insufficient to support

premeditation and accordingly, reduced the conviction to second-degree murder. The Appellant was

then sentenced to forty years as a range II offender. Both the Appellant and the State appeal as of

right from the judgment of the trial court.

The following challenges to the conviction and sentence are raised by the Appellant:

I. The trial court erred in denying the motion to suppress evidence seized from the

Appellant’s van;

II. The trial court erred in denying the motion to suppress the Appellant’s October

7, 1998, statement to police;

III. The trial court erred in denying the motion to suppress the Appellant’s July 2,

1999, statement to Detective Mason;

IV. The trial court erred in admitting evidence of the Appellant’s prior assault of the

victim;

V. The trial court improperly instructed the jury after admitting evidence of the

Appellant’s prior assault of the victim;

VI. The trial court erred in admitting autopsy photographs of the victim;

VII. The trial court erred in refusing to instruct the jury on the lesser-included

offense of reckless homicide;

VIII. The evidence is insufficient to support a conviction for murder in the second-

degree; and

IX. The trial court erred in imposing a forty-year sentence.

1

On January 29, 1999, the Davidson County Grand Jury returned indictment number 99-A-133, charging Ricky

A. Burks w ith the October 6, 1 998, prem editated murd er of his wife, Ma ry M. Lyo ns.

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In its cross-appeal, the State contends that the evidence presented at trial is sufficient to support a

conviction for first-degree murder and asks this court to reinstate the jury verdict and sentence of life

imprisonment.

After carefully reviewing the record and applicable authorities, we affirm the judgment of

the trial court. We conclude that the evidence presented at trial, while insufficient to establish

premeditation, supports a conviction for murder in the second degree of Mary Lyons. Additionally,

we find the sentence imposed not excessive.

Background

On October 6, 1998, the Communications Division of the Metro Police Department received

three anonymous 911 telephone calls. Ricky McWright testified regarding the three telephone calls

made on October 6, 1998.2 The first call was made at 5:15 p.m., the second at 7:19 p.m., and the

third at 7:46 p.m. The first call, made by an unidentified male, reported that, while the caller was

doing some concrete work, he heard a woman and a teenager arguing. The caller added that the

following day, he returned and observed the body of a deceased woman on the porch of a vacant

house. The caller then hung up. The second phone call, made by the same unidentified male,

reiterated the fight between the woman and the teenager and also the discovery of a body. The caller

provided the location as 120 Hart Lane but refused to identify himself, preferring to remain a “Good

Samaritan.” The final call was again made by the unidentified male. During this call, he stated that

he had overhead the woman calling the teenager “Michael.” He also described the teenager as a

black male, approximately fifteen or sixteen years old. Again, he refused to get involved and refused

to identify himself. All three calls were made from public telephones.

Metro Police Officer Donald Barnes was on patrol in east Nashville on October 6, 1998.

During his shift, he was dispatched to a residence located at 120 Hart Lane, a vacant house, in

response to a call regarding a “body at that location.” On the porch of the residence, Officer Barnes

“observed what he thought was a person lying on a sofa, covered by a sheet.” Upon closer

inspection, Officer Barnes realized that the person was a deceased female. Barnes’ partner, Officer

Edward Michael Shea, testified:

[I]t was an older house that appeared to be vacant at the time. The body of the victim

was laying on a couch on the front porch. And she was partially nude, with . . .

abrasions about her arms and legs and chest area. She had lacerations into her head.

There was a definite state of decomposition about her due to the maggot larvae that

was present in the nostrils and the ears. And I also noticed possible ligature marks

around her neck area.

2

Ricky McWright is employed as a civilian supervisor in the Communications Division of the Metro Police

Departm ent. The Com munication Division is responsib le for recording all 91 1 telephone ca lls.

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All attempts in obtaining fingerprint evidence proved unsuccessful. No weapons or other evidence

were discovered at the crime scene. Detective Tim Mason testified that no blood was found at the

crime scene. Investigators concluded that the body had been placed at the location after the murder.

The victim, Mary Lyons, was subsequently identified through her fingerprints which were on file

due to her employment as a school patrol mother for the police department.3

On October 6th and again on October 7th, the Appellant mentioned to his employer, Michael

Wynne, that his wife had not come home and he was concerned. Mr. Wynne suggested to the

Appellant that he fill out a missing person’s report. On the morning of October 7th, at approximately

9:00 a.m., the Appellant, accompanied by Mr. Wynne, drove to the police station for this purpose.

At 1:42 p.m., Detective Mason talked with the Appellant regarding the murder of his wife. In an

attempt to “figure out what happened to [the Appellant’s] wife,” Detective Mason asked the

Appellant to relate the events of the past week. The Appellant recalled:

On Monday I take [sic] my wife and I went to my job. And we shot the breeze with

my boss man a little while. And that afternoon, when I got off, uh, I went to the

Kroger store on, uh, Dickerson Road. And uh, as I was coming into the parking lot,

uh, Michael got out of a van with two white women. There was [sic] some kids. I

know they was [sic] white or something. And, uh, he flagged us down before we got

ready to park. . . .

. . . I went in the store and uh, when I come back out, he and my wife was [sic]

discussing something about them slipping and doing what they had to do you know

. . . Uh, they been sleeping around. And uh . . . they had . . . started an argument.

I just left on my own. . . . [S]he decided that she wanted to go up there and see if

there’s a sign in front of the house. . . . [W]e were going to try to buy the house. . .

. [W]e went up there, and . . . stayed there a minute or two. And then I went back,

she told me that she had to go back to the bank. Because she said we didn’t, hadn’t

got enough money for what she wanted. And she told me to get . . . she ain’t goin’

to be but a minute. So, she said well I am going in here and you can you can pick me

up on your way back go down there. Go get you a bottle or something. So, I went

down there to get the bottle. And when I got the bottle and come back, she wasn’t

there. So, I automatically left and went to the house. . . . She wasn’t there and then

I come back. . . .

. . . Tuesday woke up, I went to work. And . . . I told my boss, something was

bothering me. My wife, don’t usually do that. She goes somewhere, but she comes

back. And uh, but we worked and uh I got off yesterday evening. I decided to go

3

Margaret Snorten, the victim’s sister, testified that Mary Lyons was 5'4", weighed 115 pounds and was sixty

years old. Ms. Lyons was the mother of eight children and grandmother of fourteen children. Ms. Snorten related that

the Appella nt and h er sister main tained sep arate househ olds and that Ms. L yons resid ed with an adult d aughter on Settle

Court in Nashville.

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back and back track myself. . . . I got drunk and went back to the house. . . . I seen

this sheet on this thing. I knowed [sic] it wasn’t her. . . . And uh, then I come made

the phone calls. I made the three phone calls. Because I was concerned about her and

I couldn’t, I didn’t stay there, because I couldn’t stand the sight of what I had seen.

After consultation with the District Attorney’s Office, it was decided, however, that there was

insufficient proof to charge the Appellant with the homicide. At this point, the Appellant was

permitted to leave.

Detectives Mason and McAlister walked the Appellant to the front of the building where they

encountered Ms. Lyons’ son, Fabian. Fabian Lyons began threatening the Appellant. For his own

safety, the Appellant was directed back into the police station into the room where he had been

previously interviewed. At this point, Detective McAlister inquired, “Well, you didn’t kill your

wife, huh?” The Appellant replied, “No, I didn’t.” McAlister responded, “Well, what’s that blood

doing on your boots.” The Appellant then stated, “Yes, I killed her.” Shortly thereafter, the

Appellant gave the officers consent to search his van. Upon entering the van, the officers noticed

that the van “smelled really bad on the inside. And there were flies.” The officers also observed

blood splatters throughout the van.

TBI Special Agent Mark Squibb, a serologist, examined numerous samples of physical

evidence containing unidentified blood splatters. After collecting known specimens from both the

victim and the Appellant, Squibb testified at trial that the blood splatters on the Appellant’s

eyeglasses were those of Ms. Lyons, blood splatters located on a blanket found in the Appellant’s

van belonged to Ms. Lyons, and a blood sample from the victim’s pants was identified as the

Appellant’s blood.

On July 2, 1999, while Detective Mason was transporting the Appellant to the hospital to

have blood drawn pursuant to a search warrant, the Appellant remarked that he wanted to plead

guilty because any sentence that he received would effectively be a life sentence. Detective Mason

asked the Appellant what he meant by that statement. The Appellant responded, “You know I did

it, and that basically everybody knows that I did it.”

At the Appellant’s subsequent trial, Michael Anthony Wynne, the owner of Landmark Paving

Company, stated that two months prior to the death of Ms. Lyons, he had employed the Appellant

to complete miscellaneous tasks, including operating the asphalt roller and loader. Mr. Wynne

recalled that on the morning of October 5, 1998, the Appellant reported to the shop at 6:30 a.m. as

usual. On this date, Mr. Wynne observed a dark-skinned woman in the Appellant’s van. The

Appellant introduced the woman as either his girlfriend or his wife. The men did not work that day,

but Mr. Wynne gave the Appellant twenty dollars before leaving. The following morning, the

Appellant reported to work. On this date, the Appellant mentioned that his wife did not come home

the previous night. At lunch, Mr. Wynne noticed that the Appellant’s hands were swollen. On

October 7th, the Appellant again mentioned the disappearance of his wife. Mr. Wynne recalled that

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the Appellant mentioned “a dead woman at 120 Hart Lane” and that “he used to live in that house.”

On this date, Mr. Wynne accompanied the Appellant to the Criminal Justice Center.

Cheryl Gray, the victim’s daughter-in-law, testified that on January 12, 1998, approximately

nine months previous to the murder, she was notified that Mary Lyons was admitted to Metro

General Hospital. Ms. Gray stated that Ms. Lyons’ “face was swollen beyond recognition. . . . Her

eye was completely closed. Her arm was laid open from a deep cut wound, almost to the bone.” The

Appellant was present in Ms. Lyons’ hospital room. Ms. Lyons appeared “[s]cared, shaky, real

nervous.” Ms. Gray asked Ms. Lyons what was wrong. When the Appellant left the room for a short

period of time, Ms. Lyons hugged Ms. Gray and whispered that “she was scared, and that [the

Appellant] had beat her.”

Dr. John E. Gerber, an assistant medical examiner, testified that an autopsy was performed

on Mary Lyons on October 7, 1998. The autopsy report revealed that, due to the presence of “blow

flies or eggs about her body,” the absence of “rigor mortis,” and “discoloration of her skin,” the

victim had been dead for one to two days before her body was discovered. The autopsy report and

photographs of the deceased also established the presence of abrasions and defensive wounds on the

body. Dr. Gerber continued to describe the injuries suffered by the victim:

Over the right eye . . . a laceration. There were multiple contusions. . . . On the side

of her face . . . there were numerous rectangular abrasions. And then on the neck,

there was a series of rectangular abrasions in here, actually, the series of somewhat

chop marks, but rectangular overall. . . . And under the chin, there were, again,

rectangular type . . . abrasions on both the right and the left side. . . . And there was

a large mark back in through here, too, again, a somewhat rectangular abrasion that

was quite prominent. Also, on the left side of the arm . . . there’s a triangular

abrasion in that order.

Dr. Gerber explained that the abrasions to the victim’s face and upper extremities were not consistent

as made by a fist, but were consistent with being made with a “weapon of some sort.” The victim

was not strangled, but there was a soft tissue hemorrhage underneath the right side of the thyroid,

indicating there was a significant amount of pressure to the neck. Dr. Gerber continued that the

cause of death was “a subdural hematoma,” i.e., “[w]hen there is a significant enough force to cause

the veins or arteries in [the brain] to tear, [resulting in] blood collect[ing] here.” Specific to the

victim’s case, the subdural hematoma was caused by the “twisting and tearing of the head and

moving about of the head so that there’s enough force to tear the vessels underneath this structure

I call the subdural area.” He opined that Mary Lyons did not die immediately but, “most likely she

became unconscious and died sometimes afterwards.”

On cross-examination, Dr. Gerber related that the autopsy report indicated that the victim’s

blood revealed “cocaine in the blood, cocethylene,” ethanol, and benzolecanine. He explained that

“[c]ocethylene is cocaine and ethyl alcohol bonded together so they adhere to one another and form

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a compound that acts more than cocaine itself or more than alcohol itself.” Benzolecanine is a

cocaine metabolite caused by the breakdown of cocaine.

The jury returned a verdict finding the Appellant guilty of first-degree murder and sentenced

the Appellant to life imprisonment. The trial court subsequently found the proof legally insufficient

to support premeditation and reduced the Appellant’s conviction to second-degree murder.

I. Motions to Suppress:

A. October 7th Statement

B. Evidence Seized from Van

C. July 2nd Statement

The proof at the suppression hearing developed the following facts: On October 7th, the

Appellant went to the Criminal Justice Center and advised that he was the husband of Mary Lyons.

During his initial contact with Detective Mason, the Appellant was neither under arrest nor in

custody. After providing an initial statement, the Appellant left the building. At the front of the

building, some of the victim’s relatives had gathered and were threatening the Appellant. Concerned

for the Appellant’s welfare, the officers escorted the Appellant back to the Murder Squad Office.

While in this room, Detective McAllister observed blood on the Appellant’s boots. McAllister

inquired, “So you didn’t kill your wife.” The Appellant responded negatively. McAllister added,

“Well, what’s that blood doing on your boots.” At this point, the Appellant dropped his head. He

was asked, “Do we need to go back in and do another truthful statement?” The Appellant replied,

“Yes, I killed her.” To this point, no Miranda warnings had been provided.

A second interview of the Appellant was taped. Detective Mason testified that when he took

the Appellant’s second statement, he started to give Miranda warnings, but the Appellant interrupted

him with questions and he forgot to go back through them. Specifically, the Appellant interrupted

Detective Mason’s Miranda litany, inquiring specifically about his right to an attorney. Although

the Appellant was not free to leave, he was not placed under arrest until the conclusion of the second

interview. After the second interview, the Appellant signed a consent form authorizing the search

of his van that he had driven to the Criminal Justice Center. Detective Mason stated that had the

Appellant refused to sign the consent form, he would have taken the van into custody and obtained

a search warrant.

On July 2, 1999, a search warrant issued directing that blood samples be obtained from the

Appellant’s person for comparison testing. The Appellant was transported in custody to the hospital

to have the blood drawn. En route, the Appellant asked Detective Mason what the State’s offer was

and remarked that he wanted to plead guilty because any sentence he received would effectively be

a life sentence. Mason inquired as to what the Appellant meant by that statement. The Appellant

continued, “You know I did it, and that basically everybody knows that [I] did it.”

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The trial court entered the following findings of fact and conclusions of law:

The first, No. 1, issue has to do with the statement that was given, the interview

beginning at 1:42 p.m., on October the 7th. That interview there, I don’t have any

problem with. I think the defendant, apparently, drove himself down to the police

station. He was not in custody. So the Miranda decision, and I don’t think that the

defendant really disputes that much, would not really apply. It’s not a custodial

interrogation. The interview from 1:42 on, where I think the defendant primarily was

saying that he didn’t do this, was giving all kinds of explanations about different

things, about the school mothers and some tall, young guy, and all these different

things, whatever it was, I don’t think that’s really an issue. I think that statement, for

whatever value it would have, is admissible.

I think the second statement, you can look at it, think about it, rationalize, whatever

way you want to do, but the fact is in this second interview, at the very beginning of

the interview, it was obvious that the defendant was no longer free to go, and it was

a custodial interview, subject to the Miranda guidelines. This defendant, at the very

beginning of that interview indicates that he wanted to have an attorney. He says,

well, let me get a lawyer, if you’re fixing to charge me. It was obvious that he was

being charged. There was blood on the boots. I think that there was grounds to make

an arrest. Later on, just a couple of minutes later, I need a lawyer, Man, because I

ain’t going to get the death penalty, and I need a lawyer. He says that again.

Somewhere along the line, Detective Mason does begin to give him his rights against

self-incrimination and so forth, but never really . . . gets through that, and apparently

never is really given the standard Miranda warnings nor is there a waiver signed.

Detective Mason . . . acknowledges if the man wants to get an attorney, he has the

right to get an attorney. But, frankly, it’s not at issue here whether or not the man

knew that he had the right to have an attorney. It’s whether or not he was given the

opportunity to have an attorney when he’s requested an attorney two or three

different times during this interview.

So, I think . . . in this second interview that started on 3:10 . . . p.m., on October the

7th, 1998, he didn’t initiate this interview. After he said he wanted an attorney, he

requested an attorney more than once. He really, frankly, never waived his rights to

an attorney and — and really was not actually even warned of his rights.

...

So I don’t think that there’s much of an issue here on the interview at 3:10 p.m., that

the Motion to Suppress should be granted as to that interview. . . .

Issue No. 3 has to do with the evidence from the van. I don’t think that’s much of

an issue from what I’m gathering here. The evidence in the van didn’t really do

anything that incriminated the defendant. The blood that was collected or whatever

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else that came out of this matter that started off about the shoes was actually this

defendant’s blood, so . . .

. . . I think with regard to the van matter and the Consent to Search of the van, I think

that’s distinguishable from the second interview. . . . [The consent] was given,

apparently, according to the form, at 3:35 p.m. But I do not believe the finding of

this Court that requires this court to suppress the evidence from the second statement

would carry over to and necessarily negate the voluntariness of the consent that was

given to search that van.

So your Motion on that particular issue is going to be respectfully overruled. I think

whatever the van has . . . is distinguishable. . . . I think there was a consent there.

We have a written waiver here. And I think this defendant knew he had a right to

. . . not give the consent, but I also think, frankly, based on everything that I’ve heard

here, and I did find to make the ruling on the second interview, that the officers had

probable cause to make an arrest and that the defendant was in custody. He was no

longer free to go.

And we can beat around the bush all you want to here, but, once that came out, and

Detective McAllister noticed that blood and whatever was said then or whatever,

from that point on, this man wasn’t going anywhere. And I think it was custodial,

but I do not think defeats the Consent to Search the van. So I think that search is .

. . valid under Schneckcloth vs. Bustamonte and the Tennessee cases that go to that

issue.

The only last thing, . . . that you have is this situation on July the 2nd of 1999. The

uncontradicted testimony . . ., is that on July the 2nd of 1999, . . . Detective Mason .

. . was driving this man somewhere under a valid search warrant to get blood. . . .

. . .on the way to the hospital, without any questions being asked, because he had

been told to ask no questions, the defendant made an unsolicited, volunteered, as

opposed to voluntary . . . under Miranda, statement that was not in response to any

questions that were being asked by Detective Mason. I think that is different from

the other interview, back whenever it was in . . ., October the 7th – 1998 . . . in that

it was not an interrogation process that was there.

. . . the [Appellant] made some kind of unsolicited remarks about what was going to

happen on his case . . . I think that statement can be admitted . . . This is just a

volunteered, spontaneous, unsolicited remark. . . .

...

So the Court is of the opinion, No. 1, the first statement is fine. It wasn’t custodial.

The second statement is suppressed. It was – it was in violation of the Miranda

decision. . . . The third issue having to do with the Consent to Search the van, that

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Motion is respectfully overruled. . . . And on, finally, July the 2nd, apparently, three

weeks ago, or whenever it would have been, on the way to the hospital, that this man

is saying stuff, nobody is even asking him anything. And that’s his problem because

it’s an unsolicited, volunteered statement. And that statement can be admitted.

The Appellant now contests the rulings of the trial court asserting:

(A) the October 7th statement should have been suppressed because (1) no Miranda

warnings were given prior to the statement and (2) any statements made after his

boots were seized and he was no longer free to leave should be suppressed;

(B) the evidence found in the van should have been suppressed because his consent

to search the van was not voluntarily or intelligently given;

(C) the July 2nd statement should have been suppressed as violating Edwards v.

Arizona.

In reviewing a denial of a motion to suppress, this court looks to the facts adduced at the

suppression hearing which are most favorable to the prevailing party. State v. Daniel, 12 S.W.3d

420, 423 (Tenn. 2000) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)); State v. Timothy

Walton, No. W1998-00329-SC-R11-CD (Tenn. at Jackson, Mar. 15, 2001)(not yet released for

publication). In considering the evidence presented at the hearing, this court extends great deference

to the fact-finding of the suppression hearing judge with respect to weighing credibility, determining

facts, and resolving conflicts in the evidence. Daniel, 12 S.W.3d at 423. Indeed, these findings will

be upheld unless the evidence preponderates otherwise. Id. Furthermore, this court may consider

the entire record, including the evidence submitted both at the suppression hearing and at trial, in

evaluating the correctness of the trial court's ruling. State v. Henning, 975 S.W.2d 290, 297 (Tenn.

1998). Although deference is given to the trial court's findings of fact, this court conducts its own

appraisal of the constitutional questions presented by reviewing the law and applying it to the

specific facts of the particular case. Id. (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997);

Beare v. Tennessee Dept. of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993)); see also State v.

Timothy Walton, No. W1998-00329-SC-R11-CD.

A. October 7th, 1998, Statement

On October 7, 1998, the Appellant voluntarily went to the Criminal Justice Center to file a

missing persons report on his wife. At this time, police officers notified the Appellant of the

discovery of the body of his wife and interviewed the Appellant. The Appellant was not in custody

at this time and was free to leave. In fact, at the conclusion of the interview, the Appellant did leave

the building. Outside the building, however, members of the victim’s family had gathered and were

making threats against the Appellant. For his own safety, the Appellant was advised to return to the

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building. The Appellant voluntarily reentered the building with Detective McAllister. Once inside

the building, Detective McAllister observed what appeared to be blood on the Appellant’s boots.

McAllister commented, “So, you didn’t kill your wife? Then why is there blood on your boots?”

Detective Mason testified that the Appellant then dropped his head and admitted that he had killed

his wife. Detective McAllister could not recall the Appellant’s comments.

The Appellant contends that this admission should be suppressed because he was in custody

at the time his statement was made and he had not been provided Miranda warnings. See generally

Dickerson v. United States, 530 U.S. 428,120 S. Ct. 2326 (2000); Florida v. Royer, 460 U.S. 491,

103 S. Ct. 1319 (1993); Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). The

Fifth Amendment protection against self-incrimination "privileges a person not to answer official

questions put to him in any proceeding, civil or criminal, where the answers might incriminate him

in future criminal proceedings." Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141

(1984). In fact, the statements of an accused made during the course of custodial interrogation are

inadmissible as evidence unless the State establishes that the accused was advised of certain

constitutional rights and waived those rights. State v. Anderson, 937 S.W.2d 851, 853 (Tenn.1996).

Although we acknowledge an individual's constitutional right against self-incrimination and right

to be forewarned of these rights, we likewise recognize that voluntary statements, even if

incriminating, are not per se barred by the Fifth Amendment. See Miranda v. Arizona, 384 U.S. at

436, 86 S. Ct. at 1602; see also California v. Beheler, 463 U.S. 1121, 103 S. Ct. 3517

(1983); Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711 (1977); Beckwith v. United States, 425

U.S. 341, 96 S. Ct. 1612 (1976). It is only "when an individual is taken into custody or otherwise

deprived of his freedom by the authorities in any significant way and is subjected to questioning

[that] the privilege against self-incrimination is jeopardized," requiring the authorities to adequately

advise the individual of his constitutional protections. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612;

see also State v. Timothy Walton, No. W1998-00329-SC-R11-CD. In other words, before Miranda

warnings are required, the accused must be the subject of custodial interrogation.4 Miranda, 384

U.S. at 444, 86 S. Ct. at 1612.

In determining whether an individual is "in custody" as contemplated by Miranda, it is

incumbent upon the reviewing court to decide whether, "under the totality of circumstances, a

reasonable person in the suspect's position would consider himself or herself deprived of freedom

of movement to a degree associated with formal arrest." State v. Timothy Walton, No. W1998-

00329-SC-R11-CD; Anderson, 937 S.W.2d at 855. Factors relevant to this determination include,

but are not limited to, the following:

A the time and location of the interrogation

A the duration and character of the questioning

4

If the defendant is determined to be in “custody,” the Miranda litany of rights must be administered. If the

Miranda warnings are not provided, statements elicited from the individual may not be admitted for certain purposes

in a crimin al trial. See Stansbu ry v. Califo rnia, 511 U.S. 318, 114 S. Ct. 1526 (19 94).

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A the officer's tone of voice and general demeanor

A the suspect's method of transportation to the place of questioning

A the number of police officers present

Aany limitation on movement or other form of restraint imposed on the suspect during the

interrogation

A any interactions between the officer and the suspect

A the suspect's verbal or nonverbal responses

A the extent to which the suspect is confronted with the law enforcement officer's suspicions

or evidence of guilt

Athe extent to which the suspect is made aware that he or she is free to refrain from

answering questions or to end the interview at will.

Anderson, 937 S.W.2d at 855 (citations omitted); see also State v. Timothy Walton, No. W1998-

00329-SC-R11-CD. The trial court is provided a wide latitude of discretion in its decision, and that

decision will not be overturned by this court unless it appears there has been an abuse of the trial

court’s discretion and a violation of the defendant’s rights. See State v. Smith, 868 S.W.2d 561, 570

(Tenn. 1993), cert. denied, 513 U.S. 960, 115 S. Ct. 417 (1994).

We conclude that the trial court did not abuse its discretion in determining that the Appellant

was not in custody during the initial "statement." "[T]he initial determination of custody depends

on the objective circumstances of the interrogation, not on the subjective views harbored by either

the interrogating officers or the person being questioned." Stansbury, 511 U.S. at 323, 114 S. Ct.

at 1529. Specifically, the inquiry is "how a reasonable person in the suspect's position would have

understood his position," i.e., would he have felt that he was not free to leave and, thus, in custody.

Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984); see also Michigan v.

Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 1979 (1988); State v. Timothy Walton, No. W1998-

00329-SC-R11-CD; State v. Mosier, 888 S.W.2d 781, 784 (Tenn. Crim. App.1994); State v.

Furlough, 797 S.W.2d 631, 639 (Tenn. Crim. App.1990). Considering the totality of the

circumstances now before us, in the light most favorable to the State, we hold that the evidence

supports a conclusion that the Appellant was not in custody when he made the statement in response

to Detective McAllister’s observation. The Appellant was voluntarily at the Criminal Justice Center

for his own protection. There is no indication that the Appellant believed he was under arrest or was

not free to leave at any time. At no time was the Appellant threatened or coerced into providing a

statement. Accordingly, the Appellant's statement did not arise from a custodial environment with

the attendant entitlement to Miranda warnings. This issue is without merit.

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B. Consent to Search Van

The Appellant contends that his consent to search the van was not voluntarily given and,

accordingly, any evidence seized during the search of the van should be suppressed. In determining

the voluntariness of his consent, the Appellant requests that, since the trial court failed to enter

sufficient factual findings to conduct an appropriate “voluntariness analysis,” this court must conduct

a de novo review of the issue. He asserts that, after this court’s de novo review considering the

“totality of the circumstances,” this court must find that the consent was not given voluntarily or

intelligently. Specifically, the Appellant contends that (1) prior to giving his consent to search his

van, his constitutional rights had clearly been violated in that Detective Mason interrogated the

Appellant absent Miranda warnings and with total disregard of the Appellant’s repeated requests for

an attorney; (2) prior to obtaining the Appellant’s consent, the police engaged in a form of coercion

that likely impaired the Appellant’s judgment; (3) the police failed to adequately warn him of his

rights regarding a consensual search; (4) the Appellant was in custody and inside the police station

when he gave his consent to search; and (5) immediately prior to his consent to the search of the van,

the Appellant confessed to his role in the victim’s death.

It is well-settled that one of the exceptions to the warrant requirement is a search conducted

pursuant to a voluntary consent. State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996) (citing

Schneckloth v. Bustamonte, 412 U.S. 218, 248-249, 93 S. Ct. 2041, 2059 (1973)); State v. Ashworth,

3 S.W.3d 25, 28 (Tenn. Crim. App.1999). The burden of proof rests upon the State to show, by a

preponderance of the evidence, that the consent to a warrantless search was given freely and

voluntarily. Ashworth, 3 S.W.3d at 28 (citing Schneckloth, 412 U.S. at 248-49, 93 S. Ct. at 2059;

Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792 (1968); Bartram, 925 S.W.2d at

230). The validity of a search depends upon whether, based on the totality of the circumstances, the

consent was "voluntarily given, and not the result of duress or coercion." Schneckloth v. Bustamonte,

412 U.S. at 248-49, 93 S. Ct. at 2059. Moreover, the trial court's finding that a search is consensual

will not be overturned on appeal unless the evidence preponderates against the ruling. State v. Woods,

806 S.W.2d 205, 208 (Tenn. Crim. App. 1990), perm. to appeal denied, (Tenn. 1991), cert. denied, 502

U.S. 1079, 112 S. Ct. 986 (1992); Brady v. State, 584 S.W.2d 245, 251-52 (Tenn. Crim. App. 1979).

The Appellant contends that the preceding interrogation, resulting in an un-Mirandized

statement, “tainted” the Appellant’s subsequent consent to search his van.5 Accordingly, he asserts

that any evidence obtained from the search of his van must be suppressed as “fruit of the poisonous

tree.” See generally Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S. Ct. 407, 416 (1963)

(evidence obtained by illegal police conduct is generally found inadmissible). The absence of Miranda

warnings prior to an inculpatory statement does not necessarily vitiate a subsequent consent to search.

5

The Appella nt’s un-Mirandized statement did not contain any statement by the Appellant that he had murdered

his wife. Rather, the Appellant admitted that he and his wife had engaged in a physical altercation during which he had

hit her with h is hand. He stated that both of them had been drinking and the victim had been smoking crack cocaine.

The physical altercation lasted approximately fifteen minutes, after which the victim smoked more crack co caine. The

Appellant then left. He stated that when he returned to the vacant house, the victim was dead.

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See generally State v. Timothy Walton, No. W1998-00329-SC-R11-CD; State v. Kyger, 787 S.W.2d

13, 24 (Tenn. Crim. App. 1989) (citing State v. Story, 608 S.W.2d 599 (Tenn. Crim. App. 1980); see

Michigan v. Tucker, 417 U.S. 433, 94 S. Ct. 2357 (1974)). The warnings provided by Miranda are

procedural safeguards designed to ensure that the right against compulsory self-incrimination is

protected and intelligently exercised. See State v. Smith, 834 S.W.2d 915, 918 (Tenn. 1992) (citing

see, e.g., Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285 (1985); New York v. Quarles, 467 U.S. 649,

104 S. Ct. 2626 (1984); Tucker, 417 U.S. at 433, 94 S. Ct. at 2357).

In Tucker, the Supreme Court refused to apply the “tainted fruits” doctrine from Wong Sun

v. United States to testimony ultimately gained as a result of a statement obtained from the defendant

in violation of Miranda. Tucker, 417 U.S. at 451, 94 S. Ct. at 2367. Similarly, in Elstad, the Court

stated that while the “fruit of the poisonous tree” doctrine called for suppression of evidence upon a

finding of a Fourth Amendment violation, the same result did not necessarily follow when officers

erred “in administering the prophylactic Miranda procedures.” Elstad, 470 U.S. at 309, 105 S. Ct. at

1293. In Dickerson v. United States, 530 U.S. at 428, 120 S. Ct. at 2326, the Supreme Court affirmed

its prior holdings in Elstad and Tucker, acknowledging Miranda’s prophylactic procedures as

recognition of “the fact that unreasonable searches under the Fourth Amendment are different from

unwarned interrogation under the Fifth Amendment.” See State v. Timothy Walton, No. W1998-

00329-SC-R11-CD. Thus, the exclusionary rule operates differently under the Fifth Amendment than

the Fourth Amendment, preferring to admit non-testimonial evidence, so long as the statements

revealing the non-testimonial evidence were not coerced. Id.

Our supreme court has rejected the rationales of the Tucker and Elstad decisions with regard

to admission of a subsequent confession obtained after an initial unlawful confession. See Smith, 834

S.W.2d at 921 (setting forth stricter standards for determining voluntariness of a confession made

subsequent to an illegally-obtained initial confession). Notwithstanding, our supreme court has

recognized that the same approach does not necessarily follow under Article I, section 9 of the

Tennessee Constitution when the issue is the admission of tangible, non-testimonial evidence, noting

that prior Tennessee case law holds that “[e]vidence derived from an illegally obtained confession is

admissible notwithstanding the confession was, or should have been suppressed.” State v. Timothy

Walton, No. W1998-00329-SC-R11-CD (quoting State v. Tidwell, 775 S.W.2d 379, 388 (Tenn. Crim.

App. 1989)); see also Kyger, 787 S.W.2d at 24. Indeed, in State v. Timothy Walton, our supreme

court expressly rejected a per se exclusionary rule which would automatically exclude non-testimonial

evidence obtained from a technical failure to give Miranda warnings. State v. Timothy Walton, No.

W1998-00329-SC-R11-CD. Rather, the court announced that “a defendant may seek suppression of

non-testimonial evidence discovered through his or her unwarned statements only when the statements

are the product of an actual violation of the privilege against self-incrimination, i.e., such as when

actual coercion in obtaining the statement is involved or when the invocation of the right to remain

silent or to have counsel present is not ‘scrupulously honored.’” State v. Timothy Walton, No.

W1998-00329-SC-R11-CD (citing State v. Crump, 834 S.W.2d 265, 270 (Tenn. 1992) (parenthetical

omitted)) (emphasis added). In such cases “where the fruit of the violation involves the defendant’s

testimonial or communicative statements, however, the heightened protections of State v. Smith, 834

S.W.2d at 915, . . . continue to apply.” State v. Timothy Walton, No. W1998-00329-SC-R11-CD.

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We conclude that in the present case, the heightened scrutiny announced in Smith applies as the

Appellant specifically inquired about his right to counsel during the second interview.

In State v. Smith, the court held that “the extraction of an illegal, unwarned confession from

a defendant raises a rebuttable presumption that a subsequent confession . . . is tainted by the initial

illegality.” Smith, 834 S.W.2d at 919. That presumption may be overcome by the prosecution, if the

State can establish “that the taint is so attenuated as to justify admission of the subsequent confession.”

Id. In such cases, the crucial inquiry for the court is

whether the events and circumstances surrounding and following the initial, illegal

conduct of the law enforcement officers prevented the accused from subsequently (1)

making a free and informed choice to waive the state constitutional right not to provide

evidence against one's self; and (2) voluntarily confessing his involvement in the

crime.

Id. In addressing these questions, the reviewing court should examine the following factors:

1. The use of coercive tactics to obtain the initial, illegal confession and the causal

connection between the illegal conduct and the challenged subsequent confession;

2. The temporal proximity of the prior and subsequent confessions;

3. The reading and explanation of Miranda rights to the defendant before the

subsequent confession;

4. The circumstances occurring after the arrest and continuing up until the making of

the subsequent confession including, but not limited to, the length of the detention and

the deprivation of food, rest, and bathroom facilities;

5. The coerciveness of the atmosphere in which any questioning took place including,

but not limited to, the place where the questioning occurred, the identity of the

interrogators, the form of the questions, and the repeated or prolonged nature of the

questioning;

6. The presence of intervening factors including, but not limited to, consultations with

counsel or family members, or the opportunity to consult with counsel, if desired;

7. The psychological effect of having already confessed, and whether the defendant

was advised that the prior confession may not be admissible at trial;

8. Whether the defendant initiated the conversation that led to the subsequent

confession; and

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9. The defendant's sobriety, education, intelligence level, and experience with the law,

as such factors relate to the defendant's ability to understand the administered Miranda

rights.

Id. at 919-920.

We acknowledge the following circumstances surrounding the Appellant’s consent. The

Appellant’s consent to search his van was given shortly after he made incriminating statements without

the benefit of Miranda warnings.6 The consent was given while the Appellant was in custody.

Detective Mason presented the Appellant with a written consent to search form. The consent form

informed the Appellant that he had a right to refuse the search and that his consent could be revoked

at any time.7 No coercion or pressure was applied by law enforcement officers nor were any promises

made to the Appellant.8

Upon review of the circumstances, we conclude that the Appellant’s knowledge of his right

to refuse consent lends support to the inference that the Appellant gave consent voluntarily. See

Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2048 (knowledge of right to refuse is a factor when

determining the voluntariness of consent). Moreover, the fact that the Appellant was in custody is not

sufficient to demonstrate a coerced consent to search. See United States v. Watson, 423 U.S. 411, 424,

96 S. Ct. 820, 828 (1976); see also Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S. Ct. 417, 421 (1996).

There is no indication in this record that the Appellant was a newcomer to the law, was mentally

deficient, or was unable in the face of a custodial arrest to exercise a free choice. See generally United

States v. Crowder, 62 F.3d 782, 787 (6th Cir. 1995), cert. denied, 516 U.S. 1057, 116 S. Ct. 731 (1996).

6

The statem ents prece ding the A ppellant’s c onsent w ere supp ressed by the trial cour t.

7

The Co nsent to Se arch Ve hicle form , provide d, in part:

I, Rickey A. Burks, having been informed of my constitutional right not to have a search made of the

vehicle hereinafte r mentio ned with out a search warrant, and of my right to refuse to consent to such

a search hereby waive that right and authorize Det. Tim . Mason, . . . and his or her d esignees, to

conduct a complete searc h of my v ehicle listed as, Year 85, Make Ford, Mode l Eco. License Number

PE7638, State TN, Vehicle Identification Number , Color Blue, which is now

located at 501 2 nd Ave. N..

These investigators/officers are authorized by me to take from my vehicle any . . . evidence . . . . that

they may d esire. This written permission is being given by me to the above named Criminal

Investigators . . . freely and voluntarily and without threats or promises of any kind. I know that I can

revoke this consent at any time.

8

W e reject the Appellant’s argum ent that his inquiry as to “how much time criminal homicide carried” and

Detective Mason’s response to his inquiry constituted “a subtle form of coercion.” See gen erally State v. Smith , 933

S.W.2d 450, 456 (T enn. 1996) ("[t]ruthful statements about [a defendant's] predicament are not the type of 'coercion'

that threatens to render a statement involuntary.").

-16-

Finally, there is no evidence of physical mistreatment, violence, threats, trickery, display of a weapon,

or use of a commanding manner or tone. After examining these factors, we conclude the consent to

search was not tainted by the initial Miranda-poor question. The State has clearly overcome the

rebuttable presumption. This issue is without merit.

C. July 2, 1999, Statement

On July 2, 1999, while being transported from the jail to the hospital for the purpose of

obtaining a blood sample, the Appellant asked Detective Mason what the State’s offer was and stated

that he wanted to plead guilty because “anything he got would effectively be a life sentence for him.”

Detective Mason inquired as to what the Appellant meant by the statement. The Appellant responded

that he was in his sixties and any sentence would be a life sentence for him. He also stated “you know

I did it,” and that basically, “everybody knows I did it.” The Appellant argues that this statement

should be suppressed because the statement was made while the Appellant was in custody and after

counsel had been appointed to represent the Appellant. The trial court found:

[T]his situation on July the 2nd of 1999. The uncontradicted testimony in this record,

. . . according to Detective Mason’s testimony, he was driving this man somewhere

under a valid search warrant to get blood, . . . .

. . . on the way to the hospital, without any questions being asked, because he had been

told to ask no questions, the defendant made an unsolicited, volunteered, as opposed

to voluntary . . . under Miranda, statement that was not in response to any questions

that were being asked by Detective Mason. I think that is different from the other

interview, back whenever it was in . . ., October the 7th – 1998 . . . in that it was not an

interrogation process that was there.

The Appellant, in contesting the admission of his statement to Detective Mason, is essentially

claiming a violation of his Sixth Amendment right to counsel during custodial interrogation. It is a

firmly established tenet of constitutional law that, after the initiation of formal charges against an

accused, the Sixth Amendment right to counsel attaches, guaranteeing the accused the right to rely on

counsel as a medium between him and the State at any critical confrontation with State officials,

irrespective of coercion. See Maine v. Moulton, 474 U .S. 159, 176, 106 S. Ct. 477, 487 (1985).

Once formal criminal proceedings begin, the Sixth Amendment renders inadmissible in the

prosecution's case-in-chief statements "deliberately elicited" from a defendant without an express

waiver of the right to counsel. Michigan v. Harvey, 494 U.S. 344, 348, 110 S. Ct. 1176, 1179 (1990).

The accused may not be subjected to further interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates further communication with the police.

See Michigan v. Jackson, 475 U.S. 625, 636, 106 S. Ct. 1404, 1411 (1986).

It is clear from the record that the Appellant's statement was made after his Sixth Amendment

rights had attached. Thus, the only question is whether the statement was made in response to

improper police interrogation by Detective Mason. This determination involves questions of both fact

-17-

and law, which this court reviews de novo. See generally State v. Burns, 6 S.W.3d 453, 461 (Tenn.

1999) (citing Harries v. State, 958 S.W.2d 799, 802 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1997) (cases that involve mixed questions of law and fact are subject to de novo review)); State

v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997).

The trial court's factual finding that Detective Mason did not solicit the voluntary statement

made by the Appellant will not be disturbed unless this finding is plainly wrong or without support

in the evidence. See generally Henning, 975 S.W.2d at 299 (appellate court should uphold trial court's

decision on suppression motion unless record preponderates against finding). The relevant evidence

presented at the suppression hearing consisted of the testimony of Detective Mason. Detective Mason

related that the Appellant voluntarily and spontaneously made the statement to him. The evidence

introduced by the State is consistent with the finding of the trial court.

Our next inquiry is whether the Appellant was subjected to police interrogation while in

custody. State v. Timothy Walton, No. W1998-00329-SC-R11-CD.

[T]he term "interrogation" refers not only to express questioning, but also to any words

or actions on the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an incriminating

response from the suspect.

Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-1690 (1980) (footnotes omitted).

There is a difference between police initiated custodial interrogation and communications, exchanges,

or conversations initiated by the accused himself. See Edwards v. Arizona, 451 U.S. 477, 101 S. Ct.

1880 (1981). It is well-established that questioning initiated by the accused is not interrogation in the

Innis sense. Edwards v. Arizona, 451 U .S. at 484, 101 S. Ct. 1880. At the very least, the police must

have asked a question that was "probing, accusatory, or likely to elicit an incriminating response"

before a court may conclude that there was interrogation. Id. Our supreme court has recently held

that follow-up questions by a police officer to a defendant’s initial volunteered statement do not

constitute interrogation if the “questions are neutral attempts to clarify what has already been said

rather than apparent attempts to expand the scope of the statement already made.” See State v.

Timothy Walton, No. W1998-00329-SC-R11-CD (citing Wayne R. LaFave, et al., Criminal Procedure

§ 6.7 (d), at 566-57 (2d ed. 1999)).

In the case sub judice, the statement was an unsolicited comment by the Appellant. There is

no constitutional protection from statements volunteered by the accused. Edwards v. Arizona, 451

U.S. at 484, 101 S. Ct. at 1880. Since the police surely cannot be held accountable for the

unforeseeable results of their words or actions, the definition of interrogation can extend only to words

or actions on the part of police officers that they should have known were reasonably likely to elicit

an incriminating response. Innis, 446 U.S. at 301-301, 100 S. Ct. at 1682. Additionally, where a

defendant makes a statement without being questioned or pressured by a government agent, the

statement is admissible, if the statement was freely and voluntarily made by the defendant. Colorado

v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520 (1986); Tucker, 417 U.S. at 441, 94 S. Ct. at 2362.

-18-

Given the trial court's findings that the Appellant initiated the discussion with Detective Mason and

that Detective Mason did not pose any statements to the Appellant reasonably likely to elicit an

incriminating response, we hold that the trial court did not err in concluding that the Appellant's

statement was not the product of unconstitutional custodial interrogation. Accordingly, the motion

to suppress the statement was properly denied. This issue is without merit.

II. Sufficiency of the Evidence

The jury found the Appellant guilty of premeditated first-degree murder. The Appellant

subsequently filed a motion for new trial and, in the alternative, a motion for judgment of acquittal.

The trial court denied the Appellant’s motion for new trial but, in accordance with Rule 29 of the

Tennessee Rules of Criminal Procedure, granted the motion for judgment of acquittal, reducing the

Appellant’s conviction to second-degree murder. The Appellant now appeals contending that the

proof is insufficient to support a conviction for murder in the second-degree. Pursuant to Tenn. R.

Crim. P. 29(c), the State cross-appeals, asserting that the proof sufficiently supported the jury’s verdict

of premeditated murder and the trial court erred in granting the Appellant’s motion for judgment of

acquittal.

The standard by which the trial court determines a motion for judgment of acquittal at the end

of all the proof is, in essence, the same standard which applies on appeal in determining the sufficiency

of the evidence after a conviction; that is, whether "any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." State v. Gillon, 15 S.W.3d 492, 496

(Tenn. Crim. App. 1997) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781 (1979)); see

also State v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998). To determine whether the evidence

is insufficient to sustain the conviction, the trial court must consider "the evidence introduced by both

parties, disregard any evidence introduced by the accused that conflicts with the evidence adduced by

the State, and afford the State the strongest legitimate view of the evidence, including all reasonable

inferences which may be drawn from the evidence." State v. Campbell, 904 S.W.2d 608, 611 (Tenn.

Crim. App. 1995) (citing State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983)). "An appellate

court must apply the same standard as a trial court when resolving issues predicated upon the grant or

denial of a motion for judgment of acquittal." Gillon, 15 S.W.3d at 496 (citation omitted).

A homicide, once proven, is presumed to be second-degree murder. State v. Nesbit, 978

S.W.2d 872, 898 (Tenn. 1998), cert. denied, 526 U.S. 1052, 119 S. Ct. 1359 (1999). The State, then,

has the burden of proving the element of premeditation to elevate the offense to first-degree murder.

Id. Premeditation necessitates "the exercise of reflection and judgment," requiring a "previously

formed design or intent to kill." State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). The element of

premeditation is a question for the jury and may be inferred from the circumstances surrounding the

killing. State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993), perm. to appeal denied, (Tenn.

1994). Because the trier of fact cannot speculate as to what was in the killer's mind, the existence of

facts of premeditation must be determined from the Appellant's conduct in light of the surrounding

circumstances. See generally State v. Johnny Wright, No. 01C01-9503-CC-00093 (Tenn. Crim. App.

-19-

at Nashville, Jan. 5, 1996). Although there is no strict standard governing what constitutes proof of

premeditation, several relevant circumstances are helpful, including: the use of a deadly weapon upon

an unarmed victim; the fact that the killing was particularly cruel; a declaration by the defendant of

his intent to kill; and the making of preparations before the killing for the purpose of concealing the

crime. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997), cert. denied, 523 U.S. 1083, 118 S. Ct.

1536 (1998) (citation omitted). Additional factors from which a jury may infer premeditation include

planning activities by the Appellant prior to the killing, the Appellant's prior relationship with the

victim, and the nature of the killing. Gentry, 881 S.W.2d at 4-5 (citation omitted).

Taken in the light most favorable to the State, the proof established that, on October 6, 1998,

several “911" telephone calls were made by an unidentified citizen reporting a fight between a woman

and an adolescent male at a vacant residence on Hart Lane and the subsequent discovery of a deceased

female located at a vacant residence on Hart Lane. The body was in the early stages of decomposition

and it was evident that the person had suffered many injuries and trauma. The cause of death was a

subdural hematoma caused by “torsion, twisting and tearing of the head.” Law enforcement officers

determined that the female was already deceased at the time she was placed on the front porch of the

abandoned house. The victim was later identified as Mary Lyons, a Metro Police Department school

patrol mother. The following day, the Appellant arrived at the Criminal Justice Complex and

identified himself as the husband of Mary Lyons. While at the police station, he admitted to killing

his wife. A search of the Appellant’s van revealed the presence of blood in several places. Blood in

the van matched that of the victim and the Appellant. At trial, the victim’s daughter-in-law related a

prior incident where, as a result of the Appellant’s abuse, the victim had been hospitalized.

The State contends that the evidence was sufficient to establish the element of premeditation

beyond a reasonable doubt. Specifically, the State argues that, in addition to the fact that, “[t]he nature

of the killing is indicative of a pre-designed plan to murder the victim,” numerous circumstances exist

to support a finding of premeditation, including: the Appellant’s prior relationship with the victim was

violent; the Appellant made attempts to conceal the crime; the Appellant used a weapon on an

unarmed victim; the nature of the crime was particularly cruel; and the Appellant’s demeanor

following the murder is indicative of premeditation.

After careful consideration of all the facts and circumstances surrounding this homicide, we

are unable to conclude that the element of premeditation was established. Although we agree that this

homicide was committed with a deadly weapon against an unarmed victim, that alone will not support

premeditation. Otherwise, all homicides involving a deadly weapon would constitute first-degree

murder. See State v. Tune, 872 S.W.2d 922, 925 (Tenn. Crim. App. 1993). Likewise, we cannot

conclude that repeated blows to a victim constitute evidence of premeditation because "[r]epeated

blows can be delivered in the heat of passion, with no design or reflection." Brown, 836 S.W.2d at

542. Moreover, we cannot conclude that the Appellant’s admission of his culpability for the murder

after the fact supports proof beyond a reasonable doubt of premeditation before the crime. Finally, the

concealment of evidence after a crime is not probative of intent held prior to the crime. See West, 844

S.W.2d at 148 ("One who kills another in a passionate rage may dispose of the weapon when reason

returns just as readily as the cool, dispassionate killer.").

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While we acknowledge that one could infer premeditation from the combination of factors

present, we cannot conclude that these factors collectively establish proof of premeditation beyond a

reasonable doubt. The absence of planning activity and the absence of the events immediately

preceding the killing militate against proof of premeditation or that the Appellant killed according to

a preconceived design. Absent the element of premeditation, the Appellant's conviction for first-

degree murder cannot stand. Accordingly, the trial court properly granted the Appellant’s motion for

judgment of acquittal.

Within his challenge to the sufficiency of the evidence, the Appellant contends that the proof

is insufficient to establish his identity as the killer. The identity of the accused as the perpetrator is

certainly an indispensable element of any crime. See generally White v. State, 533 S.W.2d 735, 744

(Tenn. Crim. App. 1975), perm. to appeal denied, (Tenn. 1976). Identity of the accused may be

accomplished by either direct or circumstantial evidence, or both. State v. Thompson, 519 S.W.2d

789, 793 (Tenn. 1975). The determination of identity is a question of fact for the jury after a

consideration of all competent evidence. See Biggers v. State, 411 S.W.2d 696, 697 (Tenn.), cert.

granted, 390 U.S. 404, 88 S. Ct. 979 (1968) (affirmed on other grounds); Marable v. State, 203 Tenn.

440, 313 S.W.2d 451 (1958); State v. Crawford, 635 S.W.2d 704 (Tenn. Crim. App. 1982). Likewise,

the determination of whether all reasonable theories are excluded by the circumstantial evidence

presented is primarily a question of fact for the jury. Pruitt v. State, 460 S.W.2d 385 (Tenn. Crim.

App. 1970). In the present case, the identity of the perpetrator was established not only by

circumstantial evidence, but also most directly by the Appellant’s confessions, which left very little

to speculation.9 See Monts v. State, 379 S.W.2d 34, 40 (Tenn. 1964) (confession is direct evidence

of guilt). Thus, the evidence establishing the Appellant as the perpetrator of the murder is more than

sufficient.

Finally, in order to obtain a conviction for second-degree murder, the State is required to prove

that the Appellant caused the knowing killing of another. Tenn. Code Ann. § 39-13-210(a)(1) (1997).

Under the facts of this case, we find that the proof establishes that the Appellant acted "knowingly"

with an awareness that his brutal attack on the victim was reasonably certain to cause death. See

Tenn. Code Ann. § 39-11-106(20) (1997). Accordingly, we conclude that there is sufficient evidence

to support "knowing" conduct, and, therefore, a conviction for second-degree murder. See Tenn. R.

App. P. 13(e); see also Jackson v. Virginia, 443 U.S. at 317, 99 S. Ct. at 2789. This issue is without

merit.

9

The circum stantial proo f inferring the App ellant’s iden tity as the perpetrator included: (1) the Appellant’s

identity as the anonymous 911 caller; (2) the presence of the victim’s blood on a blanket and on the inside lens of the

Appellant’s glasses found in the Appellant’s van; (3) the presence of the Appellant’s blood on the victim’s pants; (4)

evidence that the Appellant’s hands were swollen the day after reporting his wife missing; and (5) the Appellant’s prior

act of violence against the victim.

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III. Prior Bad Acts Against Victim

During the trial, the trial court permitted the State to question Cheryl Gray, the victim’s

daughter-in-law, regarding a prior assault of the victim by the Appellant. Specifically, Gray related

the events of January 12, 1998, which resulted in hospitalization of the victim. Gray described the

victim’s face as severely swollen and noted a deep cut on the victim’s arm. During her visit with the

victim, the victim whispered to Gray that she was scared and that the Appellant had beat her. In

admitting the evidence, the trial court found (1) the prior incident has been shown by clear and

convincing evidence; (2) the testimony was relevant as proof of the Appellant’s “hostility towards the

victim, malice, intent, and a settled purpose to harm the victim;” and (3) “the prejudicial effect does

not outweigh the probative value.”

The Appellant now argues that “the trial court erred in admitting Gray’s testimony about this

alleged assault. . . .” Specifically, he asserts that “the testimony was irrelevant to any issue at trial,

including intent, and therefore, it should have been excluded under Tenn. R. Evid. 404(b).” “In the

alternative, he submits that even if the testimony was somehow relevant, it should have been excluded

because its probative value was outweighed by the danger of unfair prejudice.” In response to the

Appellant's assertions that the evidence of the episode was irrelevant and inadmissible under Tenn. R.

Evid. 404(b), the State cites, as did the trial court, State v. Smith, 868 S.W.2d at 574, wherein the

Tennessee Supreme Court held that evidence of a defendant’s prior acts of violence and threats against

a victim are admissible under Tenn. R. Evid. 404(b) because the prior bad acts are relevant to show

the defendant’s hostility toward the victim, a settled purpose to harm the victim, and the intent and

motive for the killing. The Appellant refutes reliance upon Smith, arguing that the decision did not

create a per se rule of admissibility for prior violent acts between a defendant and a victim. Rather,

he asserts that Smith merely established a rule of admissibility, requiring courts to find (1) that the

violent act “indicates the relationship” between the defendant and victim prior to the offense; and (2)

that the violent act tends to show that the defendant had “a hostility, malice, intent, and settled purpose

to harm the victim.”

Initially, we note that our standard of review with respect to the admission of evidence under

Tenn. R. Evid. 404(b) is whether the trial court abused its discretion. See State v. DuBose, 953

S.W.2d 649, 652 (Tenn. 1997). This standard is applicable if the record reveals that the trial court

substantially complied with the procedural requirements of Rule 404(b). Id. There is no dispute in

the present case of the trial court’s compliance.

In State v. Smith, our supreme court held that evidence of a defendant’s prior assaults against

a victim were admissible because such acts are relevant in establishing the defendant’s motive for the

killings and the probative value is not outweighed by the danger of unfair prejudice. Smith, 868

S.W.2d at 574 (citing Tenn. R. Evid. 404(b)(3); see generally 4 Am. Jur.2d Homicide § 274 (1968);

41 C.J.S. Homicide § 206 (1991)); see also State v. Hall, 958 S.W.2d 679, 708 (Tenn. 1997), cert.

denied, 524 U.S. 941, 118 S. Ct. 238 (1998). While we acknowledge that Smith did not create a per

se rule of admissibility regarding prior bad acts against the victim, we conclude that the trial court

properly found Ms. Gray’s testimony relevant to establish (1) the relationship between the parties, (2)

-22-

the Appellant’s hostility toward the victim, and (3) the Appellant’s malice, intent, and settled purpose

to harm the victim. Additionally, we concur with the trial court’s determination that the probative

value of the evidence is not outweighed by the danger of unfair prejudice. Accordingly, we cannot

conclude that the trial court abused its discretion in admitting such evidence. This issue is without

merit.

IV. Instructions Regarding Prior Bad Acts

Related to his argument regarding the testimony of Cheryl Gray, the Appellant

contemporaneously asserts that the trial court improperly instructed the jury as to how they were to

receive such testimony. His argument is twofold: (1) the instruction was incomplete and (2) the

instruction amounted to a judicial comment upon the evidence. Following the testimony of Cheryl

Gray, the trial court instructed the jury:

Now, Members of the Jury, before we go further, I want to give you an instruction

about this, this prior incident in January of - of ‘98. You are instructed that the

admissibility of this incident is only for the limited purpose of showing the defendant’s

hostility towards the victim, intent or the settled purpose to harm the victim. For that

limited purpose, you may give it as much weight as you think it is entitled.[10]

The Appellant submits that the trial court’s limiting instruction was incomplete “because it failed

specifically to instruct the jurors that they could not consider Gray’s testimony as evidence that the

[Appellant] had a propensity to commit violent acts against the victim, or as evidence that he acted in

conformity with that character trait in this case.”

The trial court is obliged to give jury instructions that fairly and accurately set forth the

applicable law as it applies to the facts of a particular case. State v. Stoddard, 909 S.W.2d 454, 460

(Tenn. Crim. App. 1994). Our review of the challenged instruction leads us to conclude that the trial

court clearly informed the jury that the only purpose for which they could consider the January 1998

incident was for the limited purpose of showing the Appellant’s hostility towards the victim, his intent,

or the settled purpose to harm her.

The Appellant also contends that the instruction constitutes an impermissible comment on the

evidence because it essentially accredited the testimony of Cheryl Gray rather than leaving that for the

jury’s determination. Indeed, he argues that the court’s instruction that Gray’s testimony was

10

At the conclusion of th e 404(b) he aring, defense counsel requested a limiting instruction. Defense counsel

objected to the languag e of the co urt’s intend ed instructio n, i.e., the testimony would only be admissible “to show the

defendant’s hostility to the [victim], malice and settled purpose to harm the victim.” Specifically, defense counsel

argued that “[t]hose are awfully sort of emotionally laden terms. It seems that there are less harsh or emotionally laden

words the Court could use.” The trial court replied that he would not instruct on motive, but would instruct that “it was

only admitted to show the defen dant’s ho stility toward s the victim , intent and purpos e to harm the victim an d for no

other pu rpose.”

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admissible “only for the limited purpose of showing the defendant’s hostility towards the victim, intent

or the settled purpose to harm the victim” implied that the court believed the testimony to

“demonstrate those things in fact,” rather than leaving this determination to the jury. He suggests that

the court should have clarified the instruction by offering a contemporaneous instruction similar to that

offered in State v. Steven Tolbert, No. 03C01-9707-CR-00325 (Tenn. Crim. App. at Knoxville, Oct.

7, 1998), perm. to appeal denied, (Tenn. Mar. 15, 1999).11

The State asserts that the Appellant has waived this issue by failing to object

contemporaneously to the instruction given by the trial court. We agree. The Appellant neither

objected to the instruction on this ground nor requested a supplemental instruction as to this issue.

Tenn. R. App. P. 36(a). Pursuant to Rule 30(b), Tenn. R. Crim. P., a defendant is permitted to

challenge the content of an instruction or the denial of a requested instruction as error despite the

failure to object at trial. This rule has been interpreted by our supreme court as allowing claims of the

denial of a requested instruction or of a positive error in the jury instructions but not of errors of

omissions when no objection or special request was made at trial. See State v. Lynn, 924 S.W.2d 892,

898-99 (Tenn. 1996). Alleged omissions in the charge must be raised at trial, or the issue is waived.

Id. In addition, the fact that the instructions could have been more detailed does not render the

instructions given improper, and absent a special request for an additional charge, a trial court will not

be held in error. State v. Haynes, 720 S.W.2d 76, 85 (Tenn. Crim. App. 1986).

V. Autopsy Photographs

During the State’s case-in-chief, the prosecution sought introduction of fifteen photographs of

the victim. In support of the introduction of the photographs, the prosecutor argued that the

photographs were relevant for a description of injuries because the autopsy report failed to contain a

diagram showing the location of the injuries. Moreover, the State intended to rely upon the

photographs to prove the element of premeditation. Specifically, the State sought to establish, by the

nature of the injuries, the different weapons used on the victim.12 Defense counsel conceded the nature

and cause of the victim’s injuries and the cause of the victim’s death. Of the fifteen photographs of

the victim tendered for introduction at trial, the trial court only permitted introduction of three

11

The supplemental instruction offered in Tolbert provided:

[F]or some clarification purposes, the Court is not suggesting to the jury that this testimony that you

heard does estab lish a mo tive. The C ourt is allow ing th is testim ony in for you to make that

determination as to whether it does or does not effec t a m otive but tha t’s the only reason th at this

testimony is allowed, for you to make that determination. You may find that it does not. You may

find that it didn’t affect the defendant’s intent or motive one way or the other or you may find that

it does, but that’s strictly up to you to make that determination.

12

The prosecution, in response to defense counsel’s submission to the cause of death and the court’s inquiry

as to why the State could not rely strictly upon medical testimony, replied, “All I can think is a picture is worth a

thousan d word s. I don’t kn ow ho w he ca n describ e some of those o bvious c uts and jag s to her bo dy.”

-24-

photographs.13 In so ruling, the trial court stated, “I’ll let you use those three, the three indicated, just

as illustrative, because they show the back and the arm, but that’s as far as I’m willing to go.” One

photograph depicts wounds to the victim’s leg, one photograph depicts wounds to the victim’s arm,

and the remaining photograph depicts the wounds to the back. Of relevant import, the photographs

demonstrate the odd rectangular, linear and triangular abrasions left on the victim by some type of

weapon or weapons with a sharp edge. Other portions of the victim’s body are not visible in these

photographs.14

The Appellant now contends that the trial court erred in permitting the introduction of the three

autopsy photographs of the victim. Specifically, he contends that the photographs should not have

been admitted because the testimony and drawing by the prosecution’s medical expert sufficiently

described the degree and extent of the victim’s injuries. Additionally, he argues that the photographs

are more prejudicial than probative.

Tennessee courts follow a policy of liberality in the admission of photographs in both civil and

criminal cases. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978) (citations omitted). Accordingly,

“the admissibility of photographs lies within the discretion of the trial court” whose ruling “will not

be overturned on appeal except upon a clear showing of an abuse of discretion.” Id. Notwithstanding,

a photograph must be found relevant to an issue that the jury must decide before it may be admitted

into evidence. See State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998), cert. denied, 526 U.S.1071, 119

S. Ct. 1467 (1999); State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1993) (citation omitted); see also Tenn. R. Evid. 401. Photographs of a corpse are admissible

in murder prosecutions if they are relevant to the issues at trial, notwithstanding their gruesome and

horrifying character. However, if they are not relevant to prove some part of the prosecution's case,

they may not be admitted solely to inflame the jury and prejudice the defendant. Banks, 564 S.W.2d

at 950-51. Additionally, the probative value of the photograph must outweigh any unfair prejudicial

effect that it may have upon the trier of fact. Vann, 976 S.W.2d at 103 (emphasis added); Braden, 867

S.W.2d at 758; see also Tenn. R. Evid. 403. In this respect, we note that photographs of a murder

victim are prejudicial by their very nature. However, prejudicial evidence is not per se excluded;

indeed, if this were true, all evidence of a crime would be excluded at trial. Rather, what is excluded

is evidence which is “unfairly prejudicial,” in other words, that evidence which has “an undue

tendency to suggest a decision on an improper basis, commonly, though not necessarily an emotional

one.” See Vann, 976 S.W.2d at 103 (citations omitted).

13

Initially, the trial court sustained the Appellant’s objection to the photographs. The State then requested

admission of the photograp hs depicting the de fensive wou nds to the arm s and legs. The court reconsidered its ruling

and per mitted intro duction of the three photog raphs ultim ately adm itted.

14

W e acknowledge that the trial court specifically prohibited introduction of any photograph depicting the

victim’s face.

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Upon review, we find the photographs relevant and lacking danger of prejudice. The

photographs are not gruesome,15 and, although not disputed, the photographs depict the number,

location, and nature of the wounds which could not be actually relayed verbally. See generally State

v. McCormick, 778 S.W.2d 48, 53 (Tenn. 1989). Moreover, the photographs clarify the testimony of

Dr. Gerber in explaining the nature of the victim’s wounds. See State v. Morris, 24 S.W.3d 788, 811

(Tenn. 2000), Appendix, cert. denied, –U.S.–, 121 S. Ct. 786 (2001) (citing State v. Stephenson, 878

S.W.2d 530, 542 (Tenn. 1994); Smith, 868 S.W.2d at 576). We do, however, reject the State’s motive

of using the photographs to establish premeditation. The fact that repeated blows were inflicted on

the victim is not sufficient, by itself, to establish premeditation for a first-degree murder conviction.16

State v. Goss, 995 S.W.2d 617, 627 (Tenn. Crim. App. 1998), perm. to appeal denied, (Tenn. 1999)

(citing Brown, 836 S.W.2d at 542). Therefore, the probative value of the picture relative to

premeditation is questionable. Id. at 627. Finally, we conclude that the photographs were not

especially shocking or gruesome so as to preclude their admission. In weighing whether the probative

value of the photographs outweighs any prejudicial effect, we acknowledge that the admission of any

such photographs would be considered prejudicial to a defendant’s case. Notwithstanding, in the

present case, we cannot conclude that introduction of these three photographs had a tendency to

suggest a decision on an improper or unfair basis. The photographs are relevant and are not so unfairly

prejudicial as to bar their admission. Accordingly, we cannot conclude that the trial court abused its

discretion by admitting these photographs. See Tenn. R. Evid. 403. This issue is without merit.

VI. Lesser-Included Instruction

The Appellant was charged with first-degree premeditated murder. During the trial, the

Appellant requested that the court charge the jury as to the lesser offenses of second-degree murder,

voluntary manslaughter, reckless homicide and criminally negligent homicide. The court denied the

request as to reckless homicide and criminally negligent homicide. The court instructed the jury on

first-degree premeditated murder, second-degree murder and voluntary manslaughter. The jury found

the Appellant guilty of premeditated murder. Subsequently, the trial court granted the Appellant’s

motion for judgment of acquittal and reduced the conviction to second-degree murder. The Appellant

now argues that the trial court erred by failing to instruct the jury on the lesser-included offense of

reckless homicide.

15

W e acknowledge the fact that any photograph of a murd ered victim is, by its very n ature, unp leasant.

How ever, the p hotogra phs sub mitted to th e jury in the instant case w ere not of the mag nitude to d eny adm ission.

16

Our supreme court also stated that photographs of the victim m ay be ad mitted "as evidenc e of the br utality

of the attack and the extent of force used against the victim, from which the jury could infer malice, either express or

implied." Goss, 995 S.W.2d at 627 (citing Brown, 836 S.W .2d at 551 ); see also Smith , 868 S.W.2d at 576 (Trial court

did not abuse its discretion by admitting a photograph of the victim when the trial court stated that the photograph was

relevant to show " 'premeditation, malice and intent because of the multiplicity of these wounds and an obvious intent

of whoever was inflicting these wounds.' ").

-26-

Initially, we acknowledge that, in Tennessee, irrespective of a party’s request for a lesser-

included jury instruction, “it is the duty of all judges charging juries in cases of criminal prosecutions

for any felony . . . to charge the jury as to all of the law of each offense included in the indictment. .

. .” Tenn. Code Ann. § 40-18-110(a). Moreover, as the State concedes, the offense of reckless

homicide is a lesser-included offense of first-degree premeditated murder.17 See generally Burns, 6

S.W.3d at 453. This fact alone, however, is not dispositive of whether error occurred. See generally

Burns, 6 S.W.3d at 453.

Determining whether a lesser-included offense must be charged in the jury instructions is a

two-part inquiry. Burns, 6 S.W.3d at 469. First, the court must determine whether any evidence exists

that reasonable minds could accept as to the application of a lesser-included offense. Id. In making

this determination, the trial court must view the evidence liberally in the light most favorable to the

existence of the lesser-included offense without making any judgments on the credibility of such

evidence. Id. Second, the trial court must determine if the evidence, viewed in this light, is legally

sufficient to support a conviction for the lesser-included offense. Id. at 467-69.

“Reckless homicide” is “a reckless killing of another.” Tenn. Code Ann. § 39-13-215 (1997).

“Reckless” refers to a person who acts recklessly with respect to circumstances

surrounding the conduct or the result of the conduct when the person is aware of but

consciously disregards a substantial and unjustifiable risk that the circumstances exist

or the result will occur. The risk must be of such a nature and degree that its disregard

constitutes a gross deviation from the standard of care that an ordinary person would

exercise under all the circumstances as viewed from the accused person’s standpoint.

Tenn. Code Ann. § 39-11-106(a)(31) (1997). We are unable to conclude that under the test announced

in Burns that reasonable minds could find that the Appellant’s killing of his wife constituted reckless

homicide. Burns, 6 S.W.3d at 469.

Under the definition of recklessness, the jury would have been required to find that the

Appellant either (1) acted recklessly with regard to the circumstances surrounding his conduct or (2)

consciously disregarded a substantial and unjustifiable risk that death would occur. The proof clearly

established that the victim suffered repeated blows from a weapon or weapons that left rectangular,

linear and triangular marks on her body. These acts were not merely reckless but rather intentionally

17

An offense is a lesser-included offense:

(a) if all of its statutory ele ments 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 differe nt men tal state indicatin g a lesser kin d of culp ability. . .

Burns, 6 S.W.3d at 466-467.

-27-

inflicted with a conscious objective to produce death. Moreover, to suggest that the “torsion, twisting

and tearing of the [victim’s] head and moving about of the head so that there’s enough force to tear

the vessels underneath” constitutes merely a gross deviation from the standard of care that an ordinary

person would exercise requires a quantum leap which neither “reasonable minds” nor a reviewing

court is required to accept. See generally Burns, 6 S.W.3d at 469. For these reasons, the first inquiry

of Burns, i.e., that reasonable minds could accept as to the lesser offense, has not been met.

Accordingly, we find that the trial court did not err in refusing to instruct the jury as to the offense of

reckless homicide. This issue is without merit.

VII. Sentencing

A sentencing hearing was held on January 14, 2000. No proof was presented, rather the State

relied upon the presentence report and the evidence introduced at trial. The evidence in the

presentence report indicates that the fifty-three-year-old Appellant has a prior criminal history

consisting of first-degree murder, aggravated assault, assault and battery, resisting arrest, and

numerous driving on a revoked license convictions. His 1975 conviction for first-degree murder

resulted in a sentence of forty years confinement in the Department of Correction. The Appellant is

both a high school and college graduate, however, verification of the Appellant’s bachelor’s degree

could not be obtained. With the exception of high blood pressure and a history of alcohol abuse, he

alleges to be in good health. The Appellant admitted that he had occasionally smoked marijuana in

the past. He has completed an anger management class and has participated in treatment programs,

i.e., “Self Awareness and Awareness of Others” and “Recovery Dynamics.”

After hearing the argument of counsel, the trial court sentenced the Appellant to forty years

confinement as a range II offender. In imposing such a sentence, the trial court placed great emphasis

on the Appellant’s prior criminal history, specifically, his prior murder conviction, the fact that the

victim was treated with extreme cruelty, and the use of a deadly weapon. See generally Tenn. Code

Ann. § 40-35-114(1), (5), (9) (2000 Supp.). Additionally, the court stated “there really are no

mitigating circumstances” applicable. The trial court properly determined that the Appellant was a

range II offender of a class A felony with an applicable sentencing range of "not less than twenty-five

(25) nor more than forty (40) years." Tenn. Code Ann. § 40-35-112(b)(1)(1997). When there are

enhancement factors and no mitigating factors, the trial court may set the sentence at or above the

midpoint of the range. Tenn. Code Ann. § 40-35-210(d); see also Tenn. Code Ann. § 40-35-210(c).

After weighing the enhancement factors, the trial court imposed the maximum forty-year sentence.

The Appellant now challenges the maximum sentence imposed by the trial court.

This court's review of the length, range, or manner of service of a sentence is de novo with a

presumption that the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d)

(1997). This presumption is only applicable if the record demonstrates that the trial court properly

considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The

burden is on the Appellant to show that the sentence imposed was improper. Id.; State v. Fletcher, 805

-28-

S.W.2d 785, 786 (Tenn. Crim. App. 1991); Sentencing Commission Comments, Tenn. Code Ann. §

40-35-401(d).

Within his challenge to the sentence imposed, the Appellant first contends that, because “the

trial court failed to state on the record its factual basis for the application of enhancement factor (9),”

the trial court improperly applied this factor when determining the appropriate sentence. The

Appellant maintains that “no weapon was ever identified or recovered.” Additionally, while he

acknowledges that the medical examiner testified that many of the victim’s injuries would have been

caused by some sort of weapon, he argues that the medical examiner also noted that many of the

injuries could have resulted from a punch. Finally, he concludes that there is no medical evidence that

the victim’s fatal injury was inflicted by the use of a weapon and, although he concedes that a weapon

was used at some point, there is no evidence from which one can conclude that the weapon “was, in

fact, a deadly weapon.”

During the trial, Dr. Gerber described certain injuries sustained by the victim:

Well, throughout her body, and on the face – the side of the face, both sides of the face

and as well as the upper extremities were these sharp marginated geometric figures.

They’re either triangle and mostly rectangular that do not represent a fist or a hand.

They represent something else.

...

Both of much of the injuries, in front of the chest were pretty much confined to the

upper part of the torso here. This is right and this is left. And these are triangular,

again, and rectangular. Here there’s actually a cross form, somewhat of a cross form,

t-shaped. I had already earlier drawn the triangle here on the side of the left arm that

I pointed out. These are all abrasions. . . .

...

Well, most of these [injuries] have some kind of a sharp edge to them. In fact, all of

them have some degree of sharpness to their borders.

Dr. Gerber testified that the injuries with a “sharp edge” probably resulted from the use of some type

of weapon. There is no doubt that a weapon was used. Our criminal code defines a "deadly weapon"

as "[a] firearm or anything manifestly designed, made or adapted for the purpose of inflicting death

or serious bodily injury" or "[a]nything that in the manner of its use or intended use is capable of

causing death or serious bodily injury[.]" Tenn. Code Ann. § 39-11-106(a)(5) (1997). Clearly, from

the injuries sustained by the victim in the present case, the weapon employed by the Appellant

constitutes a “deadly weapon.” Additionally, there is no requirement in the sentencing provisions that

the “deadly weapon” employed actually killed the victim. Rather, the proof must simply establish that

“[t]he defendant possessed or employed a . . . deadly weapon during the commission of the offense.”

Tenn. Code Ann. § 40-35-114(9). Accordingly, application of this enhancement factor is proper.18

18

Although not argued by the Appellant in this appeal, we note that the use of a deadly weapon is not an

elemen t of secon d-degre e murd er. See, e.g., State v. Baxter, 938 S.W.2d 697 (T enn. Crim. App. 1996 ).

-29-

The Appellant additionally alleges that “the trial court erred by failing to apply the statutory

mitigating factor that ‘the defendant assisted the authorities in locating or recovering any property or

person involved in the crime.’” See Tenn. Code Ann. § 40-35-113(10). He contends that the trial

court failed to consider that the Appellant was responsible for making the initial report to the police

about the victim’s location and that he arrived at the police station voluntarily. Essentially, he alleges

that it was his cooperation with the police that eventually led to his arrest and conviction.

While the trial court did not refute the proof that the Appellant did call “911" three times to

notify authorities regarding the location of the victim’s body, the court noted that the Appellant did

so “to mislead the police.” Additionally, the court acknowledged counsel’s argument that the

Appellant did voluntarily report to the police station. Notwithstanding, the court found:

I think he thought he could maybe outsmart the police or mislead the police, and that’s

why he came down there. And as defense counsel are probably aware, 49 out of 50

times when defendants attempt to do that, it’s a mistake, and it was a mistake in this

case, because it actually helped the police.

In response to the Appellant’s argument, the State argues that application of mitigating factor

(10) requires “that the defendant help authorities locate someone or something involved in the crime.”

This argument has previously been rejected by this court. Indeed, this court held that Tenn. Code Ann.

§ 40-35-113(10) “is broad enough to apply not only to locating any fellow perpetrators and

instruments of crime, but to locating victims and property that are the objects of criminal conduct, as

well.” State v. Lord, 894 S.W.2d 312, 318 (Tenn. Crim. App. 1994). Although we find that the trial

court should have applied the mitigating factor contained in Tennessee Code Annotated §

40-35-113(10), we find that this mitigating factor should be afforded little weight and does not justify

a modification of Appellant's sentence. See, e.g., State v. David Ryan Swanson, No.

E1998-00041-CCA-R3-CD (Tenn. Crim. App. at Knoxville, May 16, 2000) (defendant deserves credit

for seeking help and for assisting the police in "clearing all of the cases that he had committed”); State

v. Dennis E. Diamond, No. 01C01-9905-CR-00150 (Tenn. Crim. App. at Nashville, Feb. 18, 2000),

perm. to appeal denied, (Tenn. Sept. 18, 2000) (trial court considered, but declined to give substantial

weight to, the fact that appellant's own admissions brought the crime to light and that he cooperated

with law enforcement in its investigation); State v. Terry Logan, No. 02C01-9609-CC-00297 (Tenn.

Crim. App. at Jackson, Apr. 10, 1997) (defendant called 911 following the incident); State v. Tommy

Dixon, No. C.C.A. 01C01-9402-CC-00052 (Tenn. Crim. App. at Nashville, Sept. 20, 1995) (defendant

admitted he shot the victim and told officers where he had hidden the weapon. Slight mitigation might

have been in order in these circumstances); State v. Aaron V. Yelloweyes, No. 01C01-9407-CC-00256

(Tenn. Crim. App. at Nashville, May 11, 1995), perm. to appeal denied, (Tenn. Sept. 25, 1995)

(defendant assisted the police in finding the site where he had buried the victim). In this case, the

Appellant’s assistance in recovering the victim's body must be measured as mitigation against his

attempt to thwart police efforts to discover him as the main suspect. Under the circumstances in this

case, we do not believe that the Appellant’s assistance constitutes such mitigation as to warrant a

-30-

reduction in the sentence imposed. Thus, proper consideration of the three enhancement factors

justifies the forty-year sentence. This issue is without merit.

For the reasons set forth herein, we affirm the judgment of conviction and sentence entered by

the Davidson County Criminal Court.

___________________________________

DAVID G. HAYES, JUDGE

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