State of Tennessee v. Donald Johnson, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 6, 2001

STATE OF TENNESSEE v. DONALD JOHNSON, JR.

Direct Appeal from the Criminal Court for Shelby County

No. 98-06093 Bernie Weinman, Judge

No. W2000-00875-CCA-R3-CD - Filed March 28, 2001

Defendant was convicted by a Shelby County jury of felony murder and received a life sentence. In

this appeal, defendant alleges: (1) the trial court erred in failing to suppress both his oral and written

statements given to authorities; and (2) the state improperly exercised its peremptory challenges

based upon race and gender. Upon our review, we are unable to resolve the suppression issue due

to inadequate findings of fact and, therefore, remand for further findings regarding the oral and

written statements. We conclude the trial court correctly ruled that there were legitimate race and

gender-neutral reasons for the peremptory challenges. The judgment of the trial court is vacated, and

the case is remanded for further findings and/or proceedings.

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

Remanded

JOE G. RILEY , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JERRY L.

SMITH, JJ., joined.

A. C. Wharton, Jr., Public Defender; W. Mark Ward (on appeal), Phyllis L. Aluko (at trial), and

Michael J. Johnson (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellant,

Donald Johnson, Jr.

Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General;

William L. Gibbons, District Attorney General; Charles W. Bell, Jr. and Rosemary Andrews,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Defendant was convicted by a Shelby County jury of felony murder and received a life

sentence. In this appeal, defendant alleges: (1) the trial court erred in failing to suppress both his

oral and written statements given to authorities; and (2) the state improperly based its peremptory

challenges upon race and gender. Upon our review of the record, we find it necessary to remand for

further findings with regard to the statements given to authorities. Accordingly, we vacate the

judgment of the trial court and remand for further findings and/or proceedings.

FACTS

Although the defendant does not challenge the sufficiency of the evidence, we give the

following brief recitation of facts. On November 20, 1997, at approximately 9:00 p.m., two masked

gunmen entered the Tobacco Discount Beverage Store and took approximately $600 in cash. During

the robbery, a store clerk was fatally shot in the back of the head. At trial, one of the two surviving

clerks testified as to the estimated height and weight of each perpetrator. The seventeen-year-old

defendant matched the physical description of one of the perpetrators.

On November 25, 1997, defendant was arrested as was Demetrius Green. Green gave a

statement to authorities implicating the defendant in the robbery and murder. Since the defendant

was a juvenile, his mother was contacted. After her arrival, the defendant gave an oral statement and

subsequently signed a typewritten statement admitting his involvement in the robbery and murder.

The defendant admitted being the actual shooter of the victim, although he claimed it was an

accident.

Defendant was convicted by the jury of first degree murder in perpetration of robbery and

received a life sentence.

I. MOTION TO SUPPRESS

Defendant argues the trial court improperly denied his motion to suppress his oral and

typewritten statements to police. The defendant contends that his initial oral statement was given

without a knowing waiver of his Miranda rights, and that this statement tainted his subsequent

typewritten statement and thereby precluded its admissibility as well.

A. Testimony at Suppression Hearing

At the suppression hearing, the arresting officer, Michael J. Clark, testified that he arrested

the defendant on November 25, 1997, at 5:11 p.m. The defendant was not given Miranda warnings

at the time of the arrest. Officer Clark stated that while transporting the suspect to the jail, he offered

to stop and get the defendant something to eat or drink, but the defendant declined the offer. Officer

Clark testified that the defendant was not questioned on the way to the station and was not

questioned at the station until his mother arrived. Although defendant’s mother was contacted

several times at work after defendant’s arrest, she did not arrive at the police department until 10:57

p.m. Officer Clark further stated that he then asked the defendant’s mother to speak with the

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defendant privately. Thereafter, the defendant, with his mother’s encouragement, agreed to talk to

authorities.

Officer Clark stated that he gave the defendant, in the presence of his mother, the Miranda

waiver of rights form, and the defendant read the waiver aloud. He claimed that the defendant had

no trouble reading the form; the defendant signed the form at 11:35 p.m.; and the defendant stated

that he understood the form and had no questions regarding the waiver of his rights. Furthermore,

Clark stated that the defendant did not appear to be under the influence of drugs or alcohol. Officer

Clark also indicated that the defendant’s mother read the waiver form and said she understood it.

Officer Clark testified that, thereafter, he conducted an oral “fact finding interview” which lasted

about one and one-half hours.

After this oral interview, defendant’s formal statement was taken at 2:31 a.m. Officer Clark

testified that the delay between the two statements was due to the inability to immediately secure a

transcriptionist. Officer Clark testified that he read to the defendant the Miranda warnings before

the typewritten statement was taken, and the defendant indicated he understood the warnings and

wanted to give the statement. Both the defendant and his mother signed and initialed each page of

the typewritten statement.

Defendant’s sister, Shamika Johnson, testified that she was present at the defendant’s arrest,

and the officers did not verbally advise the defendant of his rights. She claimed that the defendant

was not sober at the time of the arrest; her brother could not read very well; and he had trouble

comprehending certain words.

Defendant’s mother testified that when she arrived at the police department, the defendant

was sitting in a room with two officers who kept telling him to “quit lying.” She claims that when

the defendant started talking, the officer said, “you’re lying . . . I don’t want to hear that . . . I’m

going to get your girlfriend and lock her up and she’s going to have a baby in here.” She claimed

that her son had not yet been advised of his rights. Thereafter, Ms. Johnson entered the room and

told her son that she was tired and he needed to tell the truth, or she was going to leave him in jail.

She testified that the defendant began crying, and the officers would not allow him to have food or

water or go to the bathroom. Ms. Johnson testified that she told the officers she was tired because

she had worked from 7:00 a.m. to 10:30 p.m. every night that week.

Ms. Johnson testified that she did not read the waiver of rights form before she signed it and

did not see nor hear the defendant read it. She also testified that the defendant “can’t read that good”

and would not have been able to understand the form if he had read it. She further stated that the

defendant had been diagnosed as “somewhat” mentally retarded and claimed that when he becomes

agitated, the defendant cannot understand things clearly. Ms. Johnson further testified that neither

she nor the defendant read the written statement before signing it, and that the police officer did not

read the statement to the defendant. Finally, Ms. Johnson claimed that neither she nor defendant

signed a waiver of rights form until after the written statement was typed.

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The defendant testified that he was not informed of his rights at the time of his arrest. He

claimed the officers began asking him questions before his mother arrived, and the officers got upset

and began hitting the table. He testified that once his mother arrived, the officer handed him a piece

of paper which he signed without reading it. Defendant further claimed that he smoked marijuana

immediately prior to his arrest. With regard to his typed statement, the defendant stated the officer

read the questions and answers, and he shook his head yes or no. Defendant further claimed he was

not offered anything to eat or drink, not allowed to go the bathroom, and had not slept for over

twenty-four hours.

Dr. Fred Steinberg, a clinical psychologist who evaluated the defendant, found defendant had

a verbal I.Q. of 67 and an overall I.Q. of 69, which is in the mildly mentally retarded range. Dr.

Steinberg further found the defendant could only read at a second grade level. He concluded that

the defendant would be unable to read the waiver of rights form and comprehend what he was

reading. However, he also concluded that if someone else read his rights to him, he would be more

likely to comprehend them.

The state offered the testimony of Dr. Rebecca Caperton, a psychologist for the Shelby

County Juvenile Court. Dr. Caperton testified that her testing revealed the defendant had an I.Q. of

83, which is borderline between the low average and mildly mentally retarded ranges. She testified

that it was “questionable” whether the defendant could read his Miranda warnings at all, due to his

low reading level. Finally, Dr. Caperton stated that she concurred with Dr. Steinberg’s finding that

the defendant “basically cannot read,” but testified that if his rights were explained to him verbally,

the defendant would be more likely to understand them. However, Dr. Caperton also testified that

even though she would be surprised if the defendant was able to read his rights aloud, she felt that,

if he could in fact read, he could “understand verbally what is going on.”

The defendant offered rebuttal testimony by Dr. Lynn Zager, who testified that the test

administered by Dr. Caperton is not an appropriate indicator of a person’s I.Q. Dr. Zager further

testified that the mere ability to recognize words does not parlay into an understanding of what those

words mean.

B. Standard of Review

The findings of fact made by the trial court at the hearing on a motion to suppress are binding

upon this Court unless the evidence contained in the record preponderates against them. State v.

England, 19 S.W.3d 762, 766 (Tenn. 2000). The trial court, as the trier of fact, is able to assess the

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

any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, this Court

is not bound by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn.

1998). The application of the law to the facts found by the trial court are questions of law that this

court reviews de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the

burden of establishing that the evidence contained in the record preponderates against the findings

of fact made by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

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This court may also consider evidence adduced at trial in evaluating the correctness of the

ruling on a motion to suppress. State v. Henning, 975 S.W.2d 290, 297-98 (Tenn. 1998). We have

carefully reviewed the trial testimony and find no significant discrepancies in the testimony of the

witnesses, nor any other additional testimony that would bear upon the motion to suppress. Thus,

we will confine our analysis to the suppression hearing testimony.

C. Waiver of Miranda Rights

The fact that one suffers from certain mental deficiencies does not necessarily prevent that

person from understanding and waiving constitutional rights. See generally, State v. Middlebrooks,

840 S.W.2d 317, 327 (Tenn. 1992); IV Wharton’s Criminal Evidence § 643, p. 169 (14th ed. 1987).

A person with a mental deficiency may waive his Miranda rights, if that waiver was knowingly and

voluntarily made. State v. Green, 613 S.W.2d 229, 233 (Tenn. Crim. App. 1980); Braziel v. State,

529 S.W.2d 501, 505-06 (Tenn. Crim. App. 1975). When determining whether an accused has

voluntarily, knowingly and intelligently waived his Miranda rights, this court must consider the

totality of the circumstances which existed when the accused waived these rights. Middlebrooks,

840 S.W.2d at 326; State v. Benton, 759 S.W.2d 427, 431 (Tenn. Crim. App. 1988). The totality of

the circumstances must reveal “an uncoerced choice and the required level of comprehension.” State

v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (quoting State v. Stephenson, 878 S.W.2d 530, 545

(Tenn. 1994)). Where a defendant contends that his waiver of Miranda rights was not voluntarily

or understandingly made due to his age and borderline range of intelligence, the court must consider

such factors as the defendant’s age, educational background, mental competence and ability, prior

criminal justice experience, demeanor, responsiveness to questioning, possible malingering, and the

manner in which the Miranda rights were explained. Blackstock, 19 S.W.3d at 208. However, no

single factor is necessarily determinative. Id.

D. Trial Court’s Findings

After hearing testimony, the trial court took the motion under advisement and subsequently

entered an order denying the motion. The only portions of the order relating to the facts and

conclusions of law are the following:

....

The police officer testified to the effect that the defendant read

the Miranda warnings out loud in the presence of his mother, and he

stated that he advised the defendant orally of his rights before he took

a written statement from the defendant.

The defendant and his mother maintain that no advice of

rights was given, but the mother indicated that she told her son to tell

the truth. The mother stated that due to the fact that she was working

a double shift, she kept falling asleep during questioning of her son.

The mother and sister testified to the effect that the defendant was not

capable of reading the Miranda warnings.

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There were some differences in the testimony of the

psychologists but they agreed that due to the defendant’s low IQ he

probably could not read his rights and understand what he was

reading, but there was testimony to the effect that he probably would

understand his rights if they were read to him.

....

Based on all the evidence adduced at this hearing, including

the Court’s observations of the defendant, the Court is of the opinion

that the defendant has the capacity to understand the Miranda

warnings and that he was made aware of his rights prior to making a

statement. The Court finds, with the encouragement of his mother

and his own volition, the defendant voluntarily made a statement to

law enforcement officers.

There were numerous and fundamental conflicts in the testimony of Officer Clark versus the

testimony of the defendant and his mother. The first two paragraphs of the order do not constitute

findings but are merely a brief summary of conflicting testimony. Therefore, the numerous conflicts

were not resolved. However, in the final paragraph of the order, the trial court concluded that the

defendant “has the capacity to understand the Miranda warnings and that he was made aware of his

rights prior to making a statement.” We must agree with the defendant, however, that these findings

are unclear as they do not specify whether they referred to the oral statement, the typewritten

statement, or both. Specifically, it is unclear whether the trial court found defendant understood his

Miranda waiver by reading the warnings aloud prior to the oral statement, or when they were read

to him before the typewritten statement, or both. We are likewise uncertain as to whether the third

paragraph of the order is merely a summary of expert testimony, or whether the trial court, based

upon the expert testimony, found the defendant “probably could not read his rights and understand

what he was reading, but . . . would understand his rights if they were read to him.”

E. Necessity for Remand

We are unable to conduct an analysis of this issue based upon the record before us. See State

v. Raspberry, 640 S.W.2d 227, 229 (Tenn. Crim. App. 1982); State v. Alonzo Gentry, C.C.A. No.

02C01-9708-CC-00335, 1998 WL 351228, at *2 (Tenn. Crim. App. filed July 2, 1998, at Jackson)

(judgment vacated and case remanded for findings of fact on motion to suppress). If the trial court

found, pursuant to the expert testimony, that the defendant could not read his rights aloud and

understand them, the oral statement given by the defendant should have been suppressed. Officer

Clark unequivocally testified that the defendant read the Miranda warnings himself, and they were

not read to him at any time prior to the oral statement. There is no contrary testimony. If the trial

court so found, then the defendant did not have the “required level of comprehension” to knowingly

waive his Miranda rights by signing the waiver after reading the rights aloud. See Blackstock, 19

S.W.3d at 208 (quoting Stephenson, 878 S.W.2d at 545).

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On the other hand, if the trial court found that the defendant in fact read all of his rights aloud

and understood he was waiving those rights prior to the oral statement, then the oral statement was

properly admitted. In order to make such a finding, however, it would appear the trial court would

have to rely upon the final portion of Dr. Caperton’s testimony. This, perhaps, is unlikely as this

testimony was never mentioned in the trial court’s order. Nevertheless, we are hesitant to speak for

the trial court.

If the trial court determines the oral statement was improperly admitted, a further analysis

will be required with regard to the typewritten statement. In State v. Smith, 834 S.W.2d 915 (Tenn.

1992), the Tennessee Supreme Court recognized that Miranda-poor statements could weigh upon

the defendant’s mind and substantially contribute to his or her involuntarily waiving the rights after

proper Miranda warnings on a subsequent interview. Id. at 919. Therefore, that court held that

under the extra protections of the Tennessee Constitution, “extraction of an illegal, unwarned

confession from a defendant raises a rebuttable presumption that a subsequent confession, even if

preceded by proper Miranda warnings, is tainted by the initial illegality.” Id. The state may

overcome this presumption by demonstrating “that the taint is so attenuated as to justify admission

of the subsequent confession.” Id. (quoting Oregon v, Elstad, 470 U.S. 298, 335, 105 S. Ct. 1285,

84 L. Ed. 2d 222 (1985) (Brennan, J., dissenting)).

The crucial inquiry in making such a determination is whether the defendant subsequently

made a free and informed choice to waive his right against self-incrimination and voluntarily

confessed to the crime. Smith, 834 S.W.2d at 919. To determine the effect of the prior improper

statement, courts should evaluate the “totality of the circumstances surrounding the two confessions”

in the context of the following nine 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;

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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

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 919-20. No single factor listed above is determinative. Id.

If the trial court determines the oral statement was improper, then there must be several

factual determinations in order to analyze these nine factors and determine whether the typewritten

statement was admissible. There was considerable conflicting testimony relating to these factors

which can only be resolved by the trial court.

F. Directions Upon Remand

In summary, we vacate the judgment of conviction and remand to the trial court for further

findings.1 No further testimony or hearings will be necessary unless the trial court feels it is unable

to make these determinations based upon the existing record. The trial court should first render

findings of fact and conclusions of law regarding the oral statement. If the trial court determines the

oral statement was not properly admitted, the trial court shall then render findings of fact and

conclusions of law regarding the typewritten statement. The trial court will utilize the nine factors

in Smith to make this determination. If the trial court determines the typewritten statement was not

properly admitted, it shall grant a new trial. If the trial court determines the typewritten statement

was properly admitted, the trial court shall enter an order reinstating the judgment of conviction from

which ruling the defendant may appeal pursuant to Tenn. R. App. P. 3(b).

We further conclude that if the oral statement is found to be inadmissible by the trial court,

its admission will be considered harmless, provided the typewritten statement is found to be

admissible by the trial court and this court. Trial testimony concerning the oral statement was

1

Similar orders of remand have been utilized by this court due to inadequ ate factual finding s. See State v. Mark

Anthony Griffin, C.C.A. No. E1999-00122-CCA-R3-CD, 2000 WL 1221873 (Tenn. Crim. App. filed August 29, 2000,

at Knoxville); State v. Robert Blocker, C.C.A. No. E1999–01624-CCA-R3-CD, 2000 WL 726447 (Tenn. Crim. App.

filed June 5, 2000, at Knoxv ille); State v. Keith Slater, C.C.A. No. 01C01-9709 -CC-00435,1999 W L 32912 (Tenn.

Crim. App. filed J anuary 27 , 1999, at N ashville); State v. William Chouinard, C.C.A. No. 03C01-9311-CR-00357, 1995

WL 5 0752 (T enn. Crim. A pp. filed Feb ruary 9, 19 95, at Kn oxville).

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limited compared to the verbatim recital of the typewritten statement. The typewritten statement was

read verbatim to the jury, is very detailed, and fully describes defendant’s role as the triggerman.2

In view of the detailed, incriminating nature of the typewritten statement, we conclude that the

admission of the oral statement would be harmless error if the typewritten statement was properly

admitted. Therefore, if the trial court and this court determine the typewritten statement was

properly admitted, there will be no need for this court to again address the effect of the erroneous

admission of the oral statement.

II. PEREMPTORY CHALLENGES

The defendant next claims that the state improperly used its peremptory challenges to strike

African-American females from the jury. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90

L. Ed. 2d 69 (1986). During jury selection, the state used four peremptory challenges to remove

African-American females from the venire. The trial court determined that the state offered race and

gender-neutral reasons for its challenges. The jury in this case ultimately included four

African-Americans, three of whom were female.

A. Standard of Review

In Batson, the United States Supreme Court held that a state's use of peremptory challenges

to intentionally exclude jurors of the defendant's race violates the defendant's right to equal

protection. 476 U.S. at 89. The Court upheld this principle in Powers v. Ohio, but eliminated the

requirement that the defendant and the potential juror share the same race. 499 U.S. 400, 415, 111

S. Ct. 1364, 113 L. Ed. 2d 411 (1991). The Court subsequently held that peremptory strikes based

solely on gender are also constitutionally impermissible. J.E.B. v. Alabama ex rel. T.B., 511 U.S.

127, 140, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994); see State v. Turner, 879 S.W.2d 819, 821-23

(Tenn.1994).

A defendant seeking to raise a Batson claim must first make a prima facie showing of

purposeful discrimination against a prospective juror. Batson, 476 U.S. at 93-94. The defendant

must establish that a consideration of all the relevant circumstances raises an inference of purposeful

discrimination. Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 903 (Tenn.1996). Once

the defendant establishes a prima facie showing of purposeful discrimination, the burden then shifts

to the state to establish a neutral basis for the challenge. Batson, 476 U.S. at 97. The state's

explanation cannot be based on mere “stereotypical assumptions,” but it need not rise to the level

of a challenge for cause. State v. Ellison, 841 S.W.2d 824, 826 (Tenn. 1992) (citing Batson, 476

U.S. at 97).

2

Although defendant contends in his statement that the shooting was accide ntal, this would b e no defen se to

first degree m urder in pe rpetration o f robbery. See State v. Middlebrooks, 840 S.W .2d 317 , 336 (T enn. 199 2).

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In ruling on peremptory challenges, the trial court must give specific reasons for each of its

factual findings. Woodson, 916 S.W.2d at 906. The trial court should explain why the objecting

party has or has not established a prima facie showing of purposeful discrimination. If the defendant

has made a prima facie showing, the court must determine whether the state gave a neutral reason

and whether it finds that the challenge was the result of purposeful discrimination. Id. The trial

court's findings are to be accorded great weight and will not be set aside unless they are clearly

erroneous. Id.

B. Trial Court’s Findings

In this case, the trial court did not explicitly state whether the defendant made a prima facie

showing of discrimination. Initially, the trial court concluded that the defendant had failed to show

there was a pattern of discrimination and allowed voir dire to continue. Thereafter, a jury was

empaneled. The next morning the trial court reversed its position and concluded the exclusion of

the four African-American women required the state to explain its challenges. Based upon the

state’s explanations, the trial court found that there was “good cause for the challenges on the mind

of the state,” and they were not based on race or gender.

C. Analysis

The four challenges at issue related to jurors Myles, Lacy, Parham and Jones. Juror Myles

stated that she could not pass judgment on another person, was feeling ill, and repeatedly requested

that she be allowed to serve on another case. Juror Lacy stated that she had two nephews “doing

time,” one for murder, and was unsure whether this would affect her impartiality. With regard to

jurors Parham and Jones, the prosecutor stated that they were dismissed because they were non-

responsive to his questions, timid, and appeared uncomfortable. Based upon a careful examination

of the record before us, we cannot say that the trial court's findings were clearly erroneous.

CONCLUSION

Upon careful review of the record, we conclude the state did not improperly exercise its

peremptory challenges. We further conclude that the findings of the trial court are inadequate for

this court to review the suppression issue. Accordingly, we vacate the judgment of conviction and

remand for further findings and/or proceedings as more fully described elsewhere in this opinion.

___________________________________

JOE G. RILEY, JUDGE

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