State v. Tony Jamerson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY 2000 Session

STATE OF TENNESSEE v. TONY JAMERSON A/K/A TONY MCNUTT

Direct Appeal from the Criminal Court for Shelby County

No. 98-10234 Joseph B. Dailey, Judge

No. W1999-00935-CCA-R3-CD - Decided August 28, 2000

The appellant, Tony Jamerson, appeals from his conviction of first degree premeditated murder, for

which he is serving a sentence of life without the possibility of parole. He alleges his conviction was

based upon insufficient evidence of premeditation, that his confession was obtained in violation of

his constitutional rights and improperly admitted as evidence against him, and that he was denied

his right to confront a witness against him by the trial court’s ruling limiting the scope of cross-

examination of a witness. Finding no merit in these contentions, we affirm the judgment of the trial

court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JERRY L. SMITH, J., and

ROBERT W. WEDEMEYER , J., joined.

Greg Carman and Amy Mayne, Memphis, Tennessee, for the Appellant

Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General,

William L. Gibbons, District Attorney General, Memphis, Tennessee, Jennifer Nichols, Assistant

District Attorney General, Memphis, Tennessee, for the Appellee

OPINION

Tony Jamerson, also known as Tony McNutt, appeals from his conviction of the first

degree premeditated murder of Ernest Goodwin.1 Jamerson is presently serving a sentence of life

without the possibility of parole for the crime. In this direct appeal, Jamerson challenges the

sufficiency of the convicting evidence, the admissibility of his confession, and the limitations

1

The victim was a female.

imposed upon his cross-examination of Sergeant James Fitzpatrick. We have reviewed the record,

the briefs of the parties and the applicable law. Because we find no reversible error, we affirm.

In the light most favorable to the state, the evidence at trial demonstrated that Tony

Jamerson was living as a roomer with the victim, Ernest Goodwin. On the afternoon and evening

of January 7, 1998, Jamerson drank beer and smoked crack cocaine. Around 9:00 p.m., Jamerson

called his aunt and asked her for $20.00 for his granddaughter’s daycare. The aunt told him she did

not have cash but would write him a check. Jamerson inquired where he might cash a check, and

he never went to the aunt’s house to get the check.

Jamerson arrived at the home he shared with the victim at about 10:45 p.m. He talked

with the victim and asked her to loan him $20.00. The victim told him she did not have $20.00.

Jamerson thought the victim was lying to him. Around 11:00 to 11:30 p.m., Jamerson again called

his aunt’s house to inquire about a $20.00 loan. This time he spoke with his uncle, who told him he

did not have $20.00 in cash. The defendant inquired where he might cash a check at that hour, and

his uncle told him he did not know.

Sometime before about midnight, the victim retired to her bedroom. Jamerson went

to the kitchen and retrieved a bottle of wine. He then went into the victim’s bedroom. The victim

was resting on her bed. Jamerson struck her at least five times on the head with the bottle of wine.

After inflicting the blows, Jamerson washed his hands and the bottle of wine. He

changed his clothes, putting his soiled clothing and the bottle of wine into a garbage bag. He moved

the victim’s body to a closet and covered it with sofa pillows. He retrieved the victim’s keys and

pulled her car to a convenient location. He took a bank containing change from the victim’s room

and loaded a 30-inch television set, a vacuum cleaner, and a telephone into the car.

Jamerson drove away and disposed of the garbage bag containing his clothing and

the murder weapon. He then traded the television, vacuum cleaner and telephone for ten $15.00

rocks of crack cocaine. He used the cocaine. After staying with the victim’s car until it ran out of

gas, Jamerson eventually wound up at his cousin’s house, where he was apprehended in the early

evening hours of January 9.

On January 8, the morning following the murder of the victim, she did not show up

for work at 5:00 a.m., and her granddaughter was unable to reach her by telephone at 6:00 a.m. The

victim’s employer and his wife, the victim’s granddaughter and the police went to the victim’s

apartment later in the morning of January 8 and discovered the victim’s body in the closet. The

victim’s granddaughter observed that the victim’s identification and other belongings were strewn

about the apartment. According to this witness, her grandmother always wore a small pouch around

her neck which contained her identification and money.

Jamerson was detained overnight and questioned the following afternoon by two

detectives, Sergeants James Fitzpatrick and A. J. Christian. In pre-trial proceedings, Jamerson

-2-

challenged the admissibility of the statement he gave the officers, claiming the statement had not

been voluntarily given. In part, the defendant claimed he had been promised a reduced charge of

second degree murder in exchange for a confession and that the state had reneged on the deal after

he gave his statement. The trial court discredited the defendant’s evidence and denied the motion

to suppress.

At trial, the defendant faced charges of first degree premeditated murder and felony

murder in the perpetration of robbery. The jury found the defendant guilty of premeditated murder

and did not report a verdict on felony murder. At the sentencing phase, the jury imposed a sentence

of life without parole. In imposing the sentence, the jury found the prior violent felony aggravator

based upon evidence of the defendant’s prior conviction of aggravated robbery. See Tenn. Code

Ann. § 39-13-204(i)(2) (Supp. 1999).

Against this factual backdrop, the defendant appeals.

I

First, Jamerson alleges that there is insufficient proof of premeditation to support a

conviction of first degree premeditated murder. When an accused challenges the sufficiency of the

evidence, an appellate court's standard of review is whether, after considering the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct.

2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e).

This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn.

Crim. App. 1990).

In determining the sufficiency of the evidence, this court should not reweigh or

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well

as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the

trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956);

Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court must afford

the State of Tennessee the strongest legitimate view of the evidence contained in the record as well

as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage, 571

S.W.2d at 835.

Jamerson was convicted of first degree murder, which is defined in pertinent part as

"[a] premeditated and intentional killing of another . . . ." Tenn. Code Ann. § 39-13-202(a)(1)

(1997). The first degree murder statute defines premeditation as an action done after the exercise

of reflection and judgment. “'Premeditation' means that the intent to kill must have been formed

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

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

-3-

decided to kill must be carefully considered in order to determine whether the accused was

sufficiently free from excitement or passion as to be capable of premeditation.” Tenn. Code Ann.

§ 39-13-202(d) (1997).

In Tennessee, a homicide, once established, is presumed to be second degree murder.

See, e.g., State v. West, 844 S.W.2d 144, 147 (Tenn. 1997); State v. Brown, 836 S.W.2d 530, 543

(Tenn. 1992). The state bears the burden of establishing premeditation in order to elevate the crime

to first degree murder. See, e.g., West, 844 S.W.2d at 147; Brown, 836 S.W.2d at 543. The

existence of premeditation is a question of fact for the jury. See, e.g., State v. Dennis Wade Suttles,

No. E1998-00088-SC-DDT-CD, slip op. at 8, — S.W.3d —, — (Tenn. June 26, 2000); State v.

Bland, 958 S.W.2d 651, 660 (Tenn. 1997). The existence of premeditation may be inferred from the

circumstances surrounding the crime. See, e.g., State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998),

cert. denied, --- U.S. ---, 119 S. Ct. 2025 (1999). Facts which may support a finding of premeditation

include “the use of a weapon upon an unarmed victim; the particular cruelty of the killing;

declarations by the defendant of an intent to kill; evidence of procurement of a weapon; preparations

before the killing for concealment of the crime, and calmness immediately after the killing.” Dennis

Wade Suttles, slip op. at 8, — S.W.3d at — (citations omitted). Multiple wounds alone may not

support a finding of premeditation, but the existence of multiple wounds may be considered in

conjunction with other evidence in assessing whether premeditation exists. Brown, 836 S.W.2d at

542.

In the present case, a reasonable jury could view these facts in the light most

favorable to the state and conclude that the killing was premeditated. Jamerson was laboring under

a drug addiction and had used crack cocaine and alcohol on the day of the crime. He made two

telephone calls to relatives in unsuccessful attempts to borrow money. These calls were made

around 9:00 p.m. and 11:00 to 11:30 p.m. Around 10:45 p.m., the defendant arrived at the home

where he lived as a roomer with the victim and asked her for some money. The victim responded

that she had no money, and the defendant thought she was lying. After the victim retired to her

bedroom for the evening, the defendant procured a weapon by going into the kitchen and retrieving

a bottle of wine. Jamerson went into the victim’s bedroom around midnight and repeatedly struck

the unarmed victim in the head with the bottle of wine as she lay resting in her bed. He had time

during the interval between his request for money from the victim and the crime to premeditate the

murder. Although the defendant claims that he was high on crack cocaine when he committed the

crime and that he panicked and fled the apartment, the undisputed evidence is that he had the

presence of mind to change his clothes, wash the victim’s blood off his hands and the bottle of wine

with which he struck the fatal blows, move the victim’s body to a closet and cover it with pillows,

take a bank containing the victim’s spare change and several large household items with him when

he left the apartment, and dispose of the wine bottle and his clothing in another location. There is

also evidence that he went through the money pouch the victim kept on her person, scattering its

contents throughout the apartment. By his own admission, he killed the victim around midnight and

did not depart the victim’s home until an hour to an hour and a half later. Viewed in its totality, this

evidence sufficiently supports the jury’s finding of a premeditated killing. See generally State v.

Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998) (use of deadly weapon on unarmed victim), cert. denied,

-4-

119 U.S. 1359,119 S. Ct. 1359 (1999); Brown, 836 S.W.2d at 542 (repeated shots or blows

considered along with other circumstances in assessing the existence of premeditation); State v.

Andrew Lee Moats, Jr., No. 03C01-9805-CR-00184, slip op. at 10 (Tenn. Crim. App., Knoxville,

Aug. 10, 1999) (defendant had time to premeditate murder where he placed shotgun across his lap,

shined vehicle lights on victim for several seconds, drove forward to victim’s vehicle and shot

victim), perm. app. denied (Tenn. 2000); State v. Anderson, 835 S.W.2d 600, 605 (Tenn. Crim. App.

1992) (attempt to shoot victim again after he had been felled and rendered helpless).

II

Jamerson’s next contention is that the trial court erred in denying his motion to

suppress his statement. He claims that the statement, in which he confessed to the killing of Ernest

Goodwin, was obtained in violation of his constitutional rights. Therefore, he posits, it was

improperly admitted as evidence against him.

At an evidentiary hearing, the state has the burden of demonstrating by a

preponderance of the evidence that the defendant's statements were voluntary, knowing and

intelligent. State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980). A trial court's determination at a

suppression hearing is presumptively correct on appeal, State v. Stephenson, 878 S.W.2d 530, 544

(Tenn. 1994), and the findings are binding upon this court unless the evidence contained in the

record preponderates against them. State v. Odom, 928 S.W.2d 18, 22 (Tenn. 1996); Stephenson,

878 S.W.2d at 544; State v. Aucoin, 756 S.W.2d 705, 710 (Tenn. Crim. App. 1988).

Under this standard, matters regarding the credibility of witnesses, the weight and

value to be afforded the evidence, and resolution of conflicts in the evidence are matters entrusted

to the trial court as the trier of fact. Odom, 928 S.W.2d at 23. On appeal, the defendant has the

burden of showing that the evidence preponderates against a finding that a confession was, in fact,

knowingly and voluntarily given. State v. Buck, 670 S.W.2d 600, 610 (Tenn. 1984). In determining

whether a statement is made voluntarily, this court must look to the totality of the circumstances

surrounding the confession, and the standard is whether "the behavior of the state's law enforcement

officials was such as to overbear petitioner's will to resist and bring about confessions not freely

self-determined." Kelly, 603 S.W.2d at 728.

In the present case, Jamerson was picked up for questioning on January 9, 1998

around 7:20 p.m. He testified at the suppression hearing that prior to his arrest, he had smoked $50

to $100 worth of crack cocaine and had consumed approximately half of a pint of whiskey and a case

of beer. He was detained overnight, and on January 10 at approximately 2:15 p.m., he was

interviewed by Sergeants James Fitzpatrick and A. J. Christian. Prior to the interview, the defendant

was allowed to use the restroom and was given a hamburger to eat. According to the state’s

evidence, Jamerson was advised of his rights before the interview commenced. At first, Jamerson

claimed he had gone to the victim’s home and smelled an odor. Upon investigation, he discovered

her body. The interviewing officers challenged the defendant’s claim by pointing out contrary

evidence, and around 6:15 p.m., Jamerson finally admitted that he had killed the victim with a bottle

of wine. After the defendant related what had happened, the investigating officers called a break to

-5-

order dinner. Once the food arrived, the defendant composed himself and related the details of the

crime. The interview ended around 7:30 p.m. At approximately 8:45 p.m., a typewritten statement

was taken. The defendant was again advised of his rights. The defendant signed the statement at

10:49 p.m.

Sergeant Fitzpatrick testified that the defendant was promised nothing in exchange

for his statement, nor was he threatened or coerced. Likewise, Fitzpatrick testified first that he did

not recall the defendant asking to make a telephone call, and later he testified that the defendant

made no such request. Fitzpatrick was acquainted with the defendant, and he did not think the

defendant was under the influence of alcohol or drugs. Sergeant Fitzpatrick acknowledged that the

officers may have discussed with the defendant the three possible sentences of life, life without

parole, and the death penalty for a conviction of first degree murder. Fitzpatrick testified that he did

not tell the defendant that he would be at the trial to see that the defendant got the death penalty if

the defendant did not make a statement at that time, and Fitzpatrick did not recall Sergeant Christian

making such a statement. According to Fitzpatrick, the charge on the arrest ticket was changed from

first degree murder to second degree murder after the defendant made his statement. Fitzpatrick

claimed he talked to a member of the district attorney’s staff, and the change was made because the

staff member told him that the state would be unable to make a case for first degree murder based

upon the facts as related in the defendant’s statement but that a charge of second degree murder was

appropriate.

The defendant testified at the suppression hearing and controverted much of the

state’s evidence. Jamerson said that Officer Fitzpatrick began questioning him around noon or 12:30

p.m. He claimed he was still under the influence of alcohol and drugs that he consumed prior to

being picked up the previous evening and that he had not slept. Jamerson testified that he was not

advised of his rights prior to making the oral or typewritten statements and that he only saw the

written advice of rights form after he had completed the typewritten statement. He claimed that he

asked to make a phone call to an attorney, but he was not allowed to use the phone. Jamerson said

that Sergeant Fitzpatrick claimed he could guarantee Jamerson a charge of second degree murder

with Range I sentencing if he would make a statement. It was only after this alleged promise was

made that Jamerson agreed to cooperate by making a statement.

In resolving the conflicting evidence, the trial court explicitly accredited the testimony

of Sergeant Fitzpatrick and discredited the defendant’s testimony. After making thorough factual

findings regarding the credibility issues, the trial court denied Jamerson’s motion to suppress. We

are bound by the trial court’s findings unless the evidence of record preponderates against them. In

this case, the evidence supports the findings, and the findings themselves support the court’s ruling.

As such, we must conclude that the trial court properly ruled that the defendant’s statement was

admissible.

-6-

III

Finally, Jamerson claims that his constitutional right to confront witnesses against

him was violated when the trial court limited the scope of his cross-examination of Sergeant James

Fitzpatrick. He claims that the court should have allowed him to explore an alleged agreement

between the interrogating officers and himself under which he would give a full confession in

exchange for an amendment of the charge from first degree murder to second degree murder. The

defendant claims that he sought to cross-examine Sergeant Fitzpatrick about his testimony that the

defendant was not threatened, coerced or pressured to confess in order to challenge “both

Fitzpatrick’s credibility as well as the validity of [his] confession.” We agree that the trial court

should have allowed the defendant to explore the circumstances surrounding the confession;

however, we conclude that the error was harmless beyond a reasonable doubt.

The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant

the right to cross-examine witnesses against him. See, e.g., U.S. Const. amend. VI; Davis v. Alaska,

415 U.S. 308, 94 S. Ct. 1105 (1974). This interest is likewise protected by the Tennessee

Constitution. See Tenn. Const. art. I, § 9. The rights of confrontation and cross-examination are

essential to a fair trial. See, e.g., Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065 (1965).

Additionally, evidence of the circumstances surrounding a confession are admissible

to assist the jury in determining whether the defendant made the confession and whether it is

truthful.2 State v. Pursley, 550 S.W.2d 949, 950 (Tenn. 1977) (citing Wynn v. State, 181 Tenn. 325,

329, 181 S.W.2d 332, 333 (1944)); see also Crane v. Kentucky, 476 U.S. 683, 688, 106 S. Ct. 2142,

2145 (1986).

In the present case, the trial court ruled that the defendant could not cross-examine

Sergeant Fitzpatrick about the alleged second degree murder deal made in exchange for the

defendant’s confession. The defendant made an offer of proof in which Sergeant Fitzpatrick

acknowledged that he changed the charge on the defendant’s arrest ticket from first degree murder

to second degree murder. No further evidence was adduced during this proffer.

However, detailed information about the alleged agreement was presented during the

pre-trial hearing on the motion to suppress. The defendant engaged in lengthy cross-examination

of Sergeant Fitzpatrick during which the officer testified that he changed the arrest ticket after a

representative of the district attorney’s office advised him that the state would be unable to prove

first degree murder based upon the facts of the case. Sergeant Fitzpatrick denied that there had been

any agreement to reduce the charge in exchange for the defendant’s confession. On the other hand

the defendant testified that Sergeant Fitzpatrick said he could guarantee a Range I, unenhanced

sentence for a conviction of second degree murder in exchange for a confession. According to

Jamerson, Fitzpatrick said he knew the district attorney personally, and Fitzpatrick begged Jamerson

2

Pursley mandates that the trial court sh all determine as a prelimina ry matter whether the confession was

voluntary. Pursley, 550 S.W .2d at 950 . If the confession is admitted, then the jury must dete rmine the we ight, if any,

to be afford ed it. Id.

-7-

to trust him. Jamerson claimed that it was only after he was comfortable that the deal was in place

that he agreed to make an inculpatory statement.

We believe that the existence of a change-in-charge agreement in exchange for a

confession is a “circumstance surrounding the confession” that would be admissible under Pursley

and Crane to assist the jury in determining whether the defendant made the confession and whether

it was truthful. The method by which the defendant sought to put this information before the jury

was cross-examination; therefore, the defendant’s right of confrontation was implicated. The

information the defendant sought to adduce on cross-examination was relevant and admissible to an

issue that was within the province of the jury. By limiting cross-examination, the trial court limited

Jamerson’s opportunity to present a defense. The limitation on cross-examination was error under

the Confrontation Clause.

The question which remains is the effect of the error. In State v. Howell, 868 S.W.2d

238, 252-53 (Tenn. 1993), our supreme court recognized that Confrontation Clause violations are

subject to harmless error analysis. In assessing the extent of any harm, the proper inquiry for the

appellate court is “whether, assuming that the damaging potential of the cross-examination were

fully realized, the error was nonetheless harmless beyond a reasonable doubt.” Id. at 253.

As indicated by Sergeant Fitzpatrick’s testimony at the suppression hearing, if the trial

court had allowed examination of him about the alleged second degree murder deal, the officer

would have denied that any such agreement existed. At trial, the defendant made no proffer of any

affirmative evidence, such as his own testimony, to the contrary.3 In the absence of any independent,

affirmative proof, we fail to see how Sergeant Fitzpatrick’s denial of the alleged agreement would

have served to prove that such an agreement existed. Thus, we are confident that the error in limiting

cross-examination was harmless beyond a reasonable doubt.

IV

In conclusion, we find no reversible error and affirm the judgment of the trial court.

___________________________________

James Curwood Witt, Jr., Judge

3

In fact, voir dire was conducted of Jamerson regarding waiver of his right to testify. He stated

une quivo cally that he did not desire to testify because the trial court had ruled that he would be subjec t to

impeachment with h is prio r con viction of ag grav ated robb ery. H e said noth ing th at wo uld ind icate that h is

decision to testify would have been different had the trial court not limited the cross-examination of Sergeant

Fitzpatrick.

-8-