State v. Carroll

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JUNE 1999 SESSION

STATE OF TENNESSEE, FILED * No. W1998-02099-CCA-R3-CD

Appellee * MADISON COUNTY

December 30, 1999

V. * Hon. Franklin Murchison, Judge

Cecil Crowson, Jr.

MICHAEL CARROLL, Appellate* Court(First Degree Murder, Especially

Clerk

Aggravated Robbery, Conspiracy

to Commit Aggravated Robbery,

Unlawful Possession of a Weapon)

Appellant. *

For Appellant For Appellee

C. Mark Donahoe Paul G. Summers

Spragins, Barnett, Cobb & Butler, PLC Attorney General and Reporter

312 East Lafayette Street 425 Fifth Avenue North

Jackson, TN 38302-2004 Nashville, TN 37243-0493

Patricia C. Kussmann

Assistant Attorney General

Criminal Justice Division

425 Fifth Avenue North

Nashville, TN 37243-0493

OPINION FILED:

AFFIRMED

NORMA MCGEE OGLE, JUDGE

OPINION

The appellant, Michael Carroll, appeals his convictions in the Madison

County Circuit Court on November 13, 1997, of first degree felony murder,

especially aggravated robbery, conspiracy to commit aggravated robbery, and the

unlawful possession of a weapon. The trial court imposed a sentence of life

imprisonment for the first degree murder conviction. Additionally, the trial court

ordered that the appellant serve his life sentence consecutively to concurrent

sentences of twenty-two years and six months for the especially aggravated robbery

conviction, four years and six months for the conspiracy conviction, and one year

and six months for the unlawful possession of a weapon conviction. On appeal, the

appellant presents the following issues for our consideration:

1. Whether the Madison County Juvenile Court and the trial

court erroneously declined to suppress the appellant’s

statement to the police.

2. Whether the juvenile court erroneously transferred the

appellant to the Madison County Circuit Court to be tried

as an adult.

3. Whether handwritten inventories of handguns stolen from

Wink’s Ole Time Sporting Goods Store and their

corresponding serial numbers constituted the best

evidence of the serial numbers.

4. Whether the trial court erroneously declined to declare a

mistrial due to the jury’s exposure to evidence of other

crimes committed by the appellant.

5. Whether the trial court erroneously declined to grant the

appellant’s motion for a judgment of acquittal at the close

of the State’s proof and whether the evidence adduced at

trial was sufficient to support the jury’s verdict.

Following a thorough review of the record and the parties’ briefs, we affirm the

judgment of the trial court.

I. Procedural History

The appellant’s convictions arose from the robbery of Wink’s Ole Time

Sporting Goods Store (Wink’s) in Jackson, Tennessee, and the murder of the

proprietor, Marcus “Wink” Winberry, on May 14, 1996. The police arrested the

appellant, who was sixteen years old, on May 21, 1996. Following his arrest, the

2

appellant provided a statement to the police implicating in the crime both himself

and other members of a local gang known as the “Vice Lords.” On July 10, 1996,

upon the State’s petition, the Madison County Juvenile Court conducted a hearing to

determine whether the appellant and his two juvenile co-defendants should be

transferred to the Madison County Circuit Court pursuant to Tenn. Code. Ann. § 37-

1-134 (1996).1 At the transfer hearing, the appellant unsuccessfully challenged the

admissibility of his statement to the police. Moreover, upon the State’s presentation

of proof, including the appellant’s statement to the police, the trial court concluded

that the transfer of the appellant was appropriate. Accordingly, on September 3,

1996, a Madison County Grand Jury indicted the appellant for the instant offenses. 2

The appellant again challenged the admissibility of his statement to the police,

submitting a motion to suppress the statement to the trial court on April 4, 1997.

Following a suppression hearing on September 2, 1997, the trial court ruled that the

appellant’s statement was admissible at his trial. The appellant’s case proceeded to

trial on September 22, 1997.

II. Factual Background

At the appellant’s trial, the State introduced into evidence the

appellant’s statement to the police, in which he confessed to committing the charged

offenses. In his statement, the appellant recounted that, several days prior to the

robbery and murder, a friend, Jerry Dewayne Anderson, informed the appellant and

another friend, John Alexander Watson, that he had shoplifted a .22 caliber pistol

from “Wink” Winberry’s sporting goods store. The group then discussed the

possibility of robbing the store in order to obtain more guns. The group developed a

plan according to which they would enter the store during business hours, preferably

1

The appellant’s transfer hearing was consolidated with the hearings in the cases of his co-

defend ants, Je rry DeW ayne And erson a nd Joh n Alexa nder W atson. See State v. Ab bott, No. 01C01-

9704-CC-00122, 1998 WL 847919, at *11 (Tenn. Crim. App. at Nashville, December 9,

1998)(consolidation of transfer hearings is permissible when the crimes charged in each case arise

from the sam e inciden t).

2

W ith respec t to the con spiracy ch arge, the appellant w as origina lly indicted for co nspirac y to

comm it especially aggravated robbery. However, at the conclusion of the State’s proof, the trial court

effe ctively g rante d the appe llant’s mo tion fo r judg me nt of a cqu ittal of c ons pirac y to co mm it esp ecia lly

agg rava ted ro bbe ry and instru cted the ju ry on th e less er inc luded offe nse of co nsp iracy to com mit

agg rava ted ro bbe ry.

3

at a time when the owner was alone in the store. The appellant would then hold Mr.

Winberry at gunpoint while his companions collected any handguns on display in the

store. The appellant enlisted his twenty-one year old cousin, James Lee Carroll, Jr.,

to provide transportation to and from the robbery.

On May 14, 1996, the appellant and his companions decided to

execute their plan and armed themselves in preparation for the robbery, the

appellant acquiring a .22 caliber, semi-automatic Revelation rifle. At first, events

proceeded largely according to plan, the group seizing numerous handguns from

Wink’s in addition to Mr. Winberry’s wallet. However, while Anderson and Watson

shattered the glass on several display cases and collected the handguns contained

in the cases, Mr. Winberry attempted to seize the appellant’s rifle. The appellant

recalled the ensuing events:

I pulled [the rifle] away. I kept telling him to stay down.

He was still getting up. That’s when I took the gun off

safety. He was reaching for a gun on the counter. I shot

him in the leg thinking he was going to fall down, but he

didn’t. He kept reaching for the gun. I started running

and shooting. I wasn’t looking at him when I was

shooting. I shot about four fast times. I was running

when I hit something and lost the gun. I ran out fast. . . .

I was the first one back to the car. . . . I said, “I hope he

didn’t die.”

Afterwards, James Carroll drove the group to his apartment where they

divided the stolen guns. Anderson then departed on his bicycle, while Carroll drove

the appellant and Watson home. Several days later, the appellant met with

Anderson and two other friends, Zannie Pearson and William Dawkins. They took

numerous photographs of themselves posing with several guns, including guns

stolen from Wink’s. The appellant was unable to tell the police the current location

of any of the stolen guns. Moreover, with respect to Mr. Winberry’s wallet, the

appellant stated that he last saw the wallet during the drive home from Carroll’s

residence on the day of the robbery and murder. The appellant recounted that, after

Carroll examined Mr. Winberry’s wallet, Watson indicated that he would dispose of

the wallet by burning it or throwing it in a ditch.

4

In addition to the appellant’s statement to the police, the State

presented the testimony of Gordon Ray White, an officer employed by the Madison

County Sheriff’s Department. Officer W hite testified that, following the appellant’s

arrest, on June 11, 1996, he overheard a conversation between the appellant and

other inmates of the county penal farm, during which the appellant stated that he

“would not have had to shoot him if he hadn’t tried to grab the 30.06.”

The appellant’s co-defendant Watson also testified on behalf of the

State at trial and substantially corroborated the appellant’s account of the robbery.

Watson testified that he was fourteen years old at the time of the robbery and

murder. He stated that he, Anderson, and the appellant were members of a gang

known as the Vice Lords. Watson explained that he and his companions decided to

commit the present robbery in order to obtain handguns for the Vice Lords.

Furthermore, Anderson had successfully shoplifted a gun from Wink’s, and the

proprietor was “real old.” Watson recounted that, in preparation for the robbery,

Watson and his companions donned gloves and armed themselves. According to

Watson, he was carrying his father’s .22 caliber, single action Davis Industries

derringer, Anderson was carrying the .22 caliber, semi-automatic AMT pistol that he

had shoplifted from Wink’s, and the appellant was carrying a .22 caliber, semi-

automatic Revelation rifle. At trial, Watson identified the Davis Industries derringer,

the AMT pistol, and the Revelation rifle. Moreover, he identified a .9 millimeter,

semi-automatic Ruger pistol that he, Anderson, and the appellant stole from Wink’s

on the occasion of these offenses. Finally, Watson testified that the appellant was

the only participant in the robbery who fired a weapon, denying that either he or

Anderson fired their weapons.

The State additionally presented the testimony of sixteen year old

Zannie Pearson. According to Pearson, he was present when Anderson shoplifted

the AMT pistol from Wink’s. He further asserted that, following this incident, he

suggested to Anderson that they rob Wink’s for additional guns. Pearson stated that

no one else participated in this discussion and that he was unsure how the appellant

5

became involved in the ensuing robbery and murder. In any event, Pearson did not

participate in the present offenses, as he was in school on the date in question.

However, following the robbery and murder, Pearson, along with Anderson, the

appellant, and another friend named “Sentel” Dawkins, took photographs of

themselves posing with weapons stolen from Wink’s. At the appellant’s trial,

Pearson identified the photographs and also identified, as weapons depicted in the

photographs, the AMT and Ruger pistols also identified by Watson. Pearson

recalled that the police seized both the photographs and the handguns when they

arrested both him and Anderson.

David Nolton,3 a patrolman with the Jackson Police Department,

testified that, several days after the robbery and murder, on May 17, 1996, he was

dispatched to an apartment in “Allenton Heights” pursuant to a report that a gun had

been discharged at that location. At the apartment, he encountered both Pearson

and Anderson and further discovered several handguns and photographs depicting

the suspects and other individuals posing with the handguns. The weapons

recovered by Officer Nolton and depicted in the photographs included the AMT and

Ruger pistols identified by both Watson and Pearson.

The State also called Kenneth Bevis, an employee of Wink’s at the

time of the present offenses, to testify at the appellant’s trial. Mr. Bevis stated that,

following the robbery and murder, he compiled inventories of missing weapons and

corresponding serial numbers using a “Federal Firearms Log Book” maintained by

the store. Mr. Bevis concluded that, in addition to an AMT pistol shoplifted shortly

before the robbery and murder, a total amount of twenty-three guns were missing

from the store, guns worth between seven and ten thousand dollars.

Mr. Bevis further testified that the serial number on the AMT pistol

seized by police from Pearson and Anderson corresponded with the serial number

of the shoplifted AMT pistol included on his inventory of stolen weapons. Mr. Bevis

3

Elsewh ere in the re cord, O fficer No lton’s nam e is also sp elled “Kno lton.”

6

then identified the Ruger pistol, recovered by Officer Nolton from Pearson and

Anderson, as a handgun that had been on display in Wink’s prior to these offenses.

Moreover, the serial number on the Ruger pistol matched one of the serial numbers

listed on his inventory.

Mike Turner, a crime scene technician employed by the Jackson

Police Department, testified that police recovered from the scene of the crimes three

spent .22 caliber long rifle cartridge cases, one spent .22 caliber long rifle bullet,

several bullet fragments, and the previously identified .22 caliber, semi-automatic

Revelation rifle. Additionally, the medical examiner recovered one spent .22 caliber

long rifle bullet from the body of the victim. Don Carmin, a forensic scientist

employed by the Tennessee Bureau of Investigation (T.B.I.) at the T.B.I. Crime

Laboratory, testified that the three spent cartridge cases and the two spent bullets

were fired from the Revelation rifle. The bullet fragments were not amenable to

testing due to their size.

Dr. O’Brien Clary Smith, the Deputy Chief Medical Examiner for

Western Tennessee and an Associate Professor of Pathology in the Division of

Forensic Pathology at the University of Tennessee Medical School, conducted an

autopsy on Mr. Winberry on May 15, 1996. He determined that the victim had died

as a result of multiple gunshot wounds. Specifically, Dr. Smith testified that there

were three “wound tracts” on Mr. Winberry’s body, which could have been caused

by two or three bullets. One wound tract was fatal and extended from Mr.

Winberry’s abdomen to his lower back, from which location Dr. Smith extracted a

bullet. The remaining two tracts were superficial and penetrated Mr. Winberry’s right

and left thighs.

At the close of the State’s proof, the appellant submitted a motion for a

judgment of acquittal of all counts of the indictment. Upon the trial court’s denial of

7

his motion,4 the appellant declined to present evidence, arguing in closing that a first

degree murder conviction was inappropriate because he had not intended to kill Mr.

Winberry. The appellant also argued that a conviction of first degree murder would

be inequitable in light of the more lenient treatment accorded to others involved in

the planning or execution of the robbery.5 Following deliberation, the jury found the

appellant guilty of all counts of the indictment.

III. Analysis

A. The Appellant’s Confession

The appellant first challenges the admissibility, both at the transfer

hearing in juvenile court and at his trial, of his statement to the police on May 21,

1996. The appellant argues that the police failed to comply with Tenn. Code. Ann. §

37-1-115 (1996) and that the appellant’s confession was neither knowing nor

voluntary. We disagree. In reaching our conclusion, we consider the entire record

of proceedings. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998); State v.

Henderson, No. 03C01-9804-CR-00139, 1999 WL 398087, at *13 (Tenn. Crim. App.

at Knoxville), perm. to appeal denied, (Tenn. 1999).

The record reflects that, between May 17, 1996, and May 20, 1996,

the police obtained statements and photographs from Pearson and Anderson

implicating the appellant, Watson, and Carroll in these offenses. On May 20, 1996,

the police filed a petition with the Madison County Juvenile Court in accordance with

Tenn. Code. Ann. § 37-1-120 (1996), setting forth the present offenses. The police

arrested the appellant at approximately 4:00 a.m. or 4:30 a.m. on the following day.

4

Aga in, afte r initially d enying the a ppe llant’s mo tion, th e trial c ourt e ffec tively gr ante d the appe llant’s

motion with respect to the charge of conspiracy to commit especially aggravated robbery, instructing

the ju ry only o n the lesse r inclu ded offe nse of co nsp iracy to com mit a ggra vated robb ery.

5

And erso n and W atso n, wh o we re als o juve niles, were trans ferre d to th e Ma diso n Co unty C ircuit

Court along with the appellant but were tried separately. Accordingly, the record does not reflect the

disposition of Ande rson’s c ase. M oreove r, it is unclear fro m the record th e offens e or offen ses to

which Watson pled guilty. However, Watson did testify at the appellant’s trial that he would receive an

effe ctive s ente nce of eig ht yea rs inc arce ration and b e plac ed on inten sive p roba tion in retur n for his

testimony. With respect to James Carroll, the record reflects that the State proffered a plea

agreem ent to Ca rroll in return fo r his testim ony at the ap pellant’s tran sfer hea ring in juven ile court.

However, the State later attempted to revoke its offer due to Carroll’s claim at the transfer hearing that

he was hearing v oices. T he reco rd does not otherw ise reflect th e dispos ition of Car roll’s case.

Finally, Pearson’s case was adjudicated in juvenile court. Although it is unclear the offense to which

he pled guilty, he apparently received a suspended sentence of three years commitment to the

Dep artm ent o f You th De velop me nt in re turn f or his testim ony at the a ppe llant’s trial.

8

At that time, the police were unable to locate either the appellant’s mother or

another adult relative. Accordingly, the police incarcerated the appellant in the

Madison County Juvenile Detention Center, and a detention hearing was scheduled

for the following morning. Later on the morning of the appellant’s arrest, at

approximately 6:00 a.m., the police executed a search warrant at the appellant’s

residence. At this time, the appellant’s mother telephoned the residence and

informed the police that she was en route to the residence. An investigator waited

at the residence for one hour, but the appellant’s mother never appeared.

During the day of the appellant’s arrest, the police continued their

investigation, including conducting a three and one half hour interview of the

appellant’s co-defendant, Carroll, from 4:34 p.m. until 8:04 p.m. that evening. At

about the time the police concluded their interview of Carroll, the appellant was

transported from the juvenile detention center to the police department. Upon the

appellant’s arrival, Michael Ray Holt, a criminal investigator employed by the Violent

Crimes Unit of the Jackson Police Department, attempted to locate the appellant’s

mother. The appellant provided Investigator Holt with three telephone numbers at

which the investigator might be able to reach his mother. At the juvenile transfer

hearing, Investigator Holt described ensuing efforts by the police:

[W]e spent approximately an hour and a half to two hours

calling numbers that Mr. Carroll had given us. We spoke

with an aunt several times, and eve[n] requested that she

come down, she declined to do so. I do not know her

name, a number he gave me, she did confirm she was

his aunt, she told us she was making effort to contact the

mother. After approximately after two hours of doing so,

and also the knowledge at the time Mr. Carroll was

arrested that his mother could not be located either, ugh,

pr[o]ceeded with the interview.

While Investigator Holt attempted to contact his mother, the appellant was seated in

a chair nearby Investigator Holt’s desk. The appellant was not handcuffed and,

according to Investigator Holt, did not appear intimidated.

At 10:16 p.m., Investigator Holt and Investigator Donna Turner began

interviewing the appellant in one of the interview rooms at the police department.

Prior to the appellant’s confession, Investigator Holt ascertained that the appellant

9

was in the ninth grade in high school, had previously been arrested, and was

familiar with the interview process.6 Moreover, in order to ensure that the appellant

could read, the investigator asked the appellant to read the first line of the form

advising the appellant of his Miranda rights and providing for the waiver of those

rights. The appellant complied without difficulty. Investigator Holt then read to the

appellant his Miranda rights, asking the appellant to read the form along with him.

The investigator also read and explained that portion of the form permitting a waiver

of Miranda rights. The appellant signed the form, informing Investigator Holt that he

understood his rights but wished to provide a statement.

Investigator Holt testified that the appellant did not exhibit any

reluctance to cooperate during the interview. Investigator Donna Turner further

testified that the appellant was not threatened or subjected to violence during the

interview. Moreover, Investigator Turner testified that, although she recalled

discussing with the appellant the seriousness of the charge of first degree murder,

she did not recall discussing the potential penalties for the offense. She denied ever

stating to the appellant that the penalty for the present offenses would depend upon

whether the appellant provided a statement to the police.

At the conclusion of the interview, Investigator Holt and the appellant

reviewed the statement together. The appellant confirmed that the statement was

accurate, signing each page. Finally, the appellant wrote the last two lines of the

statement himself, asserting, “I’m sorry that Mr. Wink’s got killed in the robbery, and

it will never happen again.” The interview concluded at 1:10 a.m.

At the suppression hearing in circuit court, the appellant testified on his

own behalf. He testified that he informed investigators prior to his interview that he

wanted his mother to be present during the interview. He also confirmed that the

investigators attempted to locate his mother but were unsuccessful. He conceded

6

The partie s stip ulate d at th e tran sfer hear ing th at the appe llant p oss ess ed a r eco rd of juven ile

adjudications.

10

that he understood that he could wait to provide a statement until his mother was

present. Moreover, he testified that he read and understood his Miranda rights,

including his right to remain silent and his right to an attorney. Nevertheless,

according to the appellant, he decided to make a statement, because Investigator

Turner indicated that he would otherwise receive a sentence of life imprisonment.

Moreover, the appellant asserted that Investigator Holt remarked to him during the

interview, “Bubba’s going to be bending you over.”

i. Police Compliance with Tenn. Code. Ann. § 37-1-115

Initially, compliance with Tenn. Code Ann. § 37-1-115 is not a

prerequisite to the admission of the appellant’s confession at his trial before the

Madison County Circuit Court. State v. Lundy, 808 S.W.2d 444, 446 (Tenn. 1991).

However, Tenn. Code. Ann. § 37-1-127(c) (1996) provides that “[a]n extra-judicial

statement, if obtained in the course of violation of [general statutory provisions

relating to juvenile courts and proceedings] or which would be constitutionally

inadmissible in a criminal proceeding, shall not be used against the child” in a

juvenile court proceeding. Thus, when police take a child into custody and conduct

an interrogation, the admissibility of any resultant statement in a juvenile court

proceeding will depend both upon satisfaction of the reasonable time requirements

of Tenn. Code. Ann. § 37-1-115 and the knowing and voluntary nature of the

confession. Lundy, 808 S.W.2d at 446. See also State v. Williams, No. 02C01-

9711-CR-00440, 1998 WL 855455, at *2 (Tenn. Crim. App. at Jackson, December

10, 1998), perm. to appeal denied, (Tenn. 1999).

In determining whether the police in this case satisfied the reasonable

time requirements of Tenn. Code. Ann. § 37-1-115, it is important to note the

distinctions the legislature drew in the statute governing juvenile courts and

proceedings between taking a child into custody and placing a child in detention.

See State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995)(“[i]n interpreting statutes,

we are required to construe them as a whole, read them in conjunction with their

11

surrounding parts, and view them consistently with the legislative purpose”). See

also State v. Webster, 972 S.W.2d 701, 703 (Tenn. Crim. App. 1998). Under Tenn.

Code. Ann. § 37-1-102(b)(8) (1996), custody means simply “the control of actual

physical care of the child.” In contrast, under Tenn. Code. Ann. § 37-1-102(b)(13),

detention “means confinement in a secure or closed type facility which is under the

direction or supervision of the court or a facility which is designated by the court or

other authority as a place of confinement for juveniles.” Tenn. Code. Ann. § 37-1-

116 (1996) explicitly limits appropriate places of detention for juveniles, as opposed

to custody of juveniles, to facilities including “detention homes or centers for

delinquent children which are under the direction or supervision of the court or other

public authority” and “any other suitable place designated or operated by the court.”

Additionally, while a child may be placed in the custody of the State pursuant,

generally, to the laws of arrest, Tenn. Code. Ann. § 37-1-113(a)(2) (1996), the

detention of a child must be supported by probable cause that the child committed

an offense either constituting a crime against a person resulting in serious injury or

death or constituting unlawful possession of a weapon. Tenn. Code. Ann. § 37-1-

114 (1996). Finally, applicable procedures change when a child’s custodial status

ripens into detention. Compare, Tenn. Code Ann. § 37-1-115 and Tenn. Code. Ann.

§ 37-1-117 (1996). See also Tenn. R. Juv. P. 5, 6, and 7.

Tenn. Code. Ann. § 37-1-115(a) governs the applicable procedures

when police first take a child into custody. In relevant part, Tenn. Code Ann. § 37-1-

115(a) provides that police, “within a reasonable time” thereof, must either

(1) [r]elease the child to such child’s parents, guardian or

other custodian . . . unless such child’s detention or

shelter care is warranted or required under Tenn. Code.

Ann. § 37-1-114; or

(2) [b]ring the child before the court or deliver such child

to a detention or shelter care facility designated by the

court . . . . A person taking a child into custody shall give

notice thereof . . . to a parent . . . and to the court.

Viewed in the context of the statute as a whole, this provision provides that, within a

reasonable time of taking a child into custody, the police must either release the

child to his parents’ custody, bring the child before the court, or place the child in an

12

appropriate detention facility for juveniles, thereby triggering procedural protections

relating to the detention of juveniles. In any case, the police must provide notice to

the juvenile’s parents.

In contrast, Tenn. Code. Ann. § 37-1-117(b) provides that, once a child

is detained pursuant to Tenn. Code. Ann. § 37-1-114, the State must file a petition

with the juvenile court and the child must be brought before the court for a detention

hearing within three days, excluding non-judicial days, but in any case no longer

than eighty-four hours after detention. See also Tenn. R. Juv. P. 6. The detention

hearing is a preliminary hearing at which the trial court must determine whether

there is in fact probable cause to believe that the child committed the charged

offenses, whether it is in the best interest of the child and the public that the child be

detained pending an adjudicatory hearing, and whether the child’s detention is

warranted or required by Tenn. Code. Ann. § 37-1-114. Tenn. R. Juv. P. 15(b). It is

a basic principle of statutory construction that a specific provision relating to a

particular subject controls and takes precedence over a general provision. See

Webster, 972 S.W.2d at 703. Thus, once a child is placed in an appropriate juvenile

detention facility, the reasonable time requirement of Tenn. Code. Ann. § 37-1-115

is transformed into the three day time limitation on conducting a detention hearing.

Again, the record in this case reflects that the police filed a petition

with the court pursuant to Tenn. Code. Ann. § 37-1-120 on the day before the

appellant’s arrest. Following the appellant’s arrest, the police immediately placed

the appellant in the Madison County Juvenile Detention Center and scheduled a

detention hearing for the next morning. The appellant does not contend that his

detention hearing was untimely. Moreover, a preponderance of the evidence

supports the juvenile court’s finding that, on the day of the appellant’s arrest and

prior to any interrogation, the police notified both the appellant’s mother and his aunt

that he was in police custody. State v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999);

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We conclude that the police

complied with relevant statutory requirements relating to juvenile courts and

13

proceedings. Accordingly, the only remaining question is whether the appellant’s

confession was knowing and voluntary.

ii. The Knowing and Voluntary Nature of the Appellant’s Confession

In contrast to the State’s compliance with Tenn. Code. Ann. § 37-1-

115, see Lundy, 808 S.W.2d at 446, the knowing and voluntary nature of the

appellant’s confession is relevant both to the use of the appellant’s confession at the

juvenile transfer hearing and to the use of the confession at the appellant’s trial. In

either context, the Fifth Amendment to the United States Constitution and Article I,

Section 9 of the Tennessee Constitution provide the criminally accused a privilege

against self-incrimination. State v. Callahan, 979 S.W.2d 577, 581 (Tenn. 1998).

An accused may waive this privilege provided the accused is apprised of his or her

Miranda rights and knowingly and voluntarily waives those rights. Id. (citing Miranda

v. Arizona, 384 U.S. 436, 444-445, 479-478, 86 S.Ct. 1602, 1612, 1630 (1966)).

The applicable standard in reviewing the validity of a Miranda waiver is the totality-

of-the-circumstances test. Id. at 581-582. See also State v. Blocker, No. 03C01-

9803-CR-00120, 1999 WL 124223, at *4 (Tenn. Crim. App. at Knoxville), perm. to

appeal denied, (Tenn. 1999).

In the context of juvenile confessions, the totality-of-the-circumstances

test requires consideration of the following factors: (1) the circumstances

surrounding the interrogation including the juvenile’s age, experience, education,

and intelligence; (2) the juvenile’s capacity to understand the Miranda warnings and

the consequences of the waiver; (3) the juvenile’s familiarity with Miranda warnings

or the ability to read and write in the language used to give the warnings; (4) any

intoxication; (5) any mental disease, disorder, or retardation; and (6) the presence of

a parent , guardian, or interested adult. Callahan, 979 S.W.2d at 583. W ith respect

to these factors, the court in Callahan observed, “While courts should exercise

special care in scrutinizing purported waivers by juvenile suspects, no single factor .

. . should by itself render a confession unconstitutional absent coercive police

activity.” Id. Thus, the admissibility of a juvenile’s confession is not dependent upon

14

the presence of his parents at the interrogation. State v. King, No. 02C01-9509-CR-

00280, 1997 WL 41256, at **3-4 (Tenn. Crim. App. at Jackson, February 4, 1997).

After carefully considering all relevant factors, we conclude that the record

preponderates in favor of the determination by both the juvenile court and the trial

court that the appellant knowingly and voluntarily confessed to the robbery and

murder of Mr. Winberry. See, e.g., State v. Williams, No. 01C01-9803-CR-00104,

1999 WL 191782, at *3 (Tenn. Crim. App. at Nashville), perm. to appeal denied,

(Tenn. 1999)(“[o]n appeal, the appellant has the burden of showing that the

evidence preponderates against a finding that a confession was, in fact, knowing[ly]

and voluntarily given”). This issue is without merit.

B. Transfer to the Madison County Circuit Court

The appellant next argues that the evidence adduced at the transfer

hearing did not constitute “reasonable grounds” to believe that he had committed

the present offenses. Tenn. Code. Ann. § 37-1-134(a)(4)(A). Specifically, the

appellant asserts that the State failed to adequately corroborate his confession in

whole or in part with additional evidence as required by Tenn. Code. Ann. § 37-1-

127(e). According to the appellant, the only corroborating evidence presented by

the State at the juvenile transfer hearing was the “unbelievable,” “unreliable,” and

“totally worthless” testimony of James Carroll. Again, we must disagree.

First, even without Carroll’s testimony, the State adduced abundant

other evidence at the transfer hearing, which corroborated the appellant’s

confession and established reasonable grounds to believe that the appellant

committed the charged offenses. In addition to the appellant’s confession, the State

introduced at the hearing the testimony of Mike Turner, an investigator with the

Jackson Police Department. Investigator Turner’s description of the scene of the

crimes, including the shattered glass display cases, was consistent with the

appellant’s account of events. Moreover, the recovery by police of three spent .22

caliber cartridge cases and a .22 caliber Revelation rifle from the scene of the

crimes was likewise consistent with the appellant’s confession.

15

The State also presented the testimony of Officer Donna Turner7 that,

following the commission of the present offenses, she visited the Jackson-Madison

County General Hospital, where she observed medical personnel attempting to treat

the victim, Mr. Winberry. Consistent with the appellant’s statement to the police that

he had shot the victim at least once in the leg, she observed wounds on Mr.

Winberry’s legs in addition to a wound on his chest.

Investigator Holt also testified at the transfer hearing, confirming that

Mr. Winberry died as a result of his wounds. Moreover, Investigator Holt testified

that, following the present offenses and at the time of Anderson’s and Pearson’s

arrests, the police recovered photographs of Anderson, the appellant, and other

individuals posing with various handguns. Again, this testimony was consistent with

the appellant’s statement to the police that, following these offenses, he, Anderson,

and other friends posed with handguns stolen from Wink’s.

Finally, both Officer Nolton and Zannie Pearson corroborated to some

extent the appellant’s statements concerning Anderson’s prior theft of a gun from

Wink’s, which provided the inspiration for the present offenses, and Anderson’s

participation in the present offenses. Specifically, Officer Nolton testified that

Anderson and Pearson were arrested on May 17, 1996, several days after the

robbery and murder, in possession of at least one weapon stolen from Wink’s.

Pearson confirmed that Anderson had shoplifted a .22 caliber pistol from Wink’s

prior to the present offenses and that, following the present offenses, he and

Anderson were arrested in possession of several handguns, including the .22 caliber

pistol.

As to Carroll’s testimony, we decline to second-guess any

consideration accorded this evidence by the juvenile court. Carroll recounted in

some detail events which occurred on the day of the robbery and murder.

Specifically, consistent with the appellant’s confession, Carroll testified that he

7

In the trans cript of the ju venile cou rt procee dings, O fficer Tu rner is refe rred to as “Donn a Trelvin.”

16

transported the appellant, Anderson, and Watson to Wink’s on the day of the

robbery and murder. One of the juveniles indicated to Carroll that a particular store

clerk at Wink’s would be willing to sell him bullets. Accordingly, Carroll briefly

entered the store in order to ascertain which store clerk was present. At the transfer

hearing, Carroll identified without hesitation the clerk that was present in the store.

He further testified that, after briefly speaking with the store clerk, he returned to his

car.

Upon returning to his car, Carroll began to drive toward home. He had

only driven approximately two blocks when his three passengers asked him to stop

the car. He observed them get out of the car and enter Wink’s. Carroll recalled

that, before the three juveniles left his car, he overheard them say, “Let’s do it.” At

this point, according to Carroll, he was aware that both Anderson and Watson were

armed, but did not realize that they intended to rob Wink’s. In any event, the

appellant, Anderson, and Watson soon reemerged from Wink’s and walked quickly

to the car. Carroll drove them back to his apartment.

Upon arriving at Carroll’s apartment, the three juveniles showed Carroll

numerous guns and stated that they had obtained the guns from Wink’s.

Furthermore, as Carroll was later driving the appellant and Watson home, one of the

juveniles stated that he and his companions had robbed Wink’s. Carroll concluded

that he received fifty dollars and a gun from the group in return for his assistance.

During his direct testimony and on cross-examination, Carroll used his

prior statement to the police to refresh his memory concerning several details.

Subsequently, notwithstanding his ability to recall numerous events without referring

to his prior statement and notwithstanding his ability to recognize the clerk who was

present in Wink’s when he entered the store on the day of these offenses, Carroll

testified that he had no independent recollection of the above events. He explained

that he hears voices and occasionally talks to his deceased parents. Indeed, he

stated that he was hearing voices during the transfer hearing and suggested that the

17

voices might have supplied some of his testimony. Carroll stated that he had

received treatment from a doctor at West Tennessee Behavioral Center and that he

had been taking Prozac, Lithium, and Thorazine since 1992. He observed that, at

the time of these offenses, at the time of his statement to the police, and at the

transfer hearing, he was not taking his medication.

Virtually all witnesses may be allowed to testify, including mentally

incompetent persons. Tenn. R. Evid. 601, Advisory Commission Comment. Of

course, a party may attempt to impeach a witness by demonstrating his impaired

capacity either at the time of the occurrence which is the subject of his testimony or

at the time of his testimony. Tenn. R. Evid. 617; State v. Barnes, 703 S.W.2d 611,

617-618 (Tenn. 1985). If the witness’ mental processes are so disturbed that he

cannot recall the evidence in question, distinguish between reality and make-

believe, or even understand his oath or affirmation, the evidence should be stricken.

See also Neil P. Cohen et al., Tennessee Law of Evidence § 603.4, at 318-319,

320-321 (3d ed. 1995); Tenn. R. Evid. 401, 403, 603. In the final analysis, however,

the competency of a witness is a matter entrusted to the sound discretion of the trial

judge, who has the opportunity to observe the witness firsthand. State v. Caughron,

855 S.W.2d 526, 537-538 (Tenn. 1993); State v. Raines, No. 01C01-9704-CC-

00127, 1998 WL 211737, at *3 (Tenn. Crim. App. at Nashville), perm. to appeal

denied, (Tenn. 1998). See also State v. Gray, 960 S.W.2d 598, 606 (Tenn. Crim.

App. 1997)(the admission of evidence, generally, is discretionary with the trial

judge). Therefore, we conclude that the record of the transfer hearing amply

supports the court’s finding of reasonable grounds to believe that the appellant

committed the present offenses.

C. The Admission at the Appellant’s Trial of Handwritten Inventories

of Stolen Weapons and their Corresponding Serial Numbers for

the Purpose of Identifying the Stolen Weapons

In his next issue, the appellant challenges the trial court’s admission at

his trial of two handwritten inventories of weapons stolen from Wink’s and

corresponding serial numbers, which inventories were compiled by Kenneth Bevis at

18

the direction of Mr. Winberry’s widow. As previously noted, Mr. Bevis testified that

he compiled the inventories of stolen weapons and their serial numbers using a

“Federal Firearms Log Book” maintained by the store. According to Mr. Bevis, when

Wink’s went out of business, he mailed the log book to the Out of Business Records

Center of the federal Bureau of Alcohol, Tobacco and Firearms. Thus, in identifying

at trial the AMT pistol shoplifted by Anderson and the Ruger pistol stolen during the

subsequent robbery and murder, Mr. Bevis referred only to his handwritten

inventories.

In permitting Mr. Bevis to match serial numbers contained in the

handwritten inventories with serial numbers affixed to the AMT and Ruger pistols,

the trial court made the following ruling:

I’m going to rule at least that the [Federal Firearms Log

Book is] unavailable and I understand counsel’s position.

[It’s] not a thousand percent unavailable, I don’t guess,

but I think because - - necessarily because I don’t know

whether they could be obtained by subpoena. I don’t

know whether they’re in existence or not. I assume they

are. I think that’s a reasonable assumption, but at least

they’re sufficiently unavailable to allow this witness to

testify concerning the serial number that he took from it.

You’ve got to remember, too, that’s it’s arguable, that

when he made a record of the serial numbers, that, in

and of itself, becomes another business record of Wink’s

because it’s something done in the regular course of the

business, and I’m talking about the recording that he

made of the serial number.

On appeal, the appellant maintains that the introduction of the handwritten

inventories in lieu of the original log book violated the “best evidence” rule set forth

in Tenn. R. Evid. 1002. The State responds that the handwritten inventories were

admissible pursuant to the so-called “business records exception” to the hearsay

rule. Tenn. R. Evid. 803(6).

Again, the admission of evidence is largely discretionary with the trial

judge, and the exercise of his discretion will not be disturbed on appeal absent clear

abuse. Gray, 960 S.W.2d at 606. However, we also note that the satisfaction of

one rule of evidence does not necessarily preclude the exclusion of evidence

pursuant to another rule. Yet, both the trial court and the State on appeal seemingly

19

suggest that, if a document satisfies the business records exception to the hearsay

rule, the document itself becomes an “original” document for purposes of the best

evidence rule. Tenn. R. Evid. 1001(3). The State on appeal effectively concedes

that the inventories did not otherwise constitute the best evidence of the serial

numbers.

Even assuming that a business record under Tenn. R. Evid. 803(6)

qualifies as an “original” document, the State was required to establish the following

prerequisites to application of the business records exception to the hearsay rule:

(1) the records “custodian or other qualified witness” must testify; (2) the record

must have been made at or near the time of the event, act, or condition; (3) a

person with personal knowledge of the recorded event must have transmitted the

information; (4) this person must have possessed a business duty to record the

information; and (5) the record must have been made and kept in the regular course

of business. Tenn. R. Evid. 803(6). See generally Neil P. Cohen, et al., Tennessee

Law of Evidence § 803(6) (3d ed. 1995). We conclude that the State failed to

satisfy its burden.

Mr. Bevis, as the sole employee of Wink’s and the person who

compiled the inventories in question, was qualified to testify concerning the

inventories. See Alexander v. Inman, 903 S.W.2d 686, 700 (Tenn. App. 1995)(“[t]o

be considered qualified, a witness must be personally familiar with the business’s

record-keeping systems and must be able to explain the record-keeping

procedures”). See also State v. Hawkins, No. 01C01-9701-CR-00014, 1998 WL

352095, at *6 (Tenn. Crim. App. at Nashville, July 2, 1998), perm. to appeal denied,

(Tenn. 1999). However, Mr. Bevis testified that, in compiling the inventories, he

relied upon a log book rather than upon his personal knowledge. Presumably, the

log book was itself a business record under Tenn. R. Evid. 803(6), and reference

thereto in the handwritten inventories would not preclude admission of the

inventories under the hearsay rule. Tenn. R. Evid. 805. Yet, the State adduced

very little testimony concerning the maintenance of the log book itself. More

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importantly, the State failed to establish whether it was the regular practice of W ink’s

to compile the handwritten inventories following a robbery or theft. Indeed, Mr.

Bevis testified that, when Anderson shoplifted the AMT pistol, the store did not

create any written report or record of the theft. Moreover, Mr. Bevis apparently

carried one of the inventories folded in his wallet until providing the document to the

State. In short, regardless of whether the inventories constituted the best evidence

of the serial numbers, they were inadmissible as hearsay.

Nevertheless, any error in permitting Mr. Bevis to identify the AMT and

Ruger pistols by reference to the handwritten inventories was entirely harmless. As

noted by the State, Mr. Bevis was able to identify the Ruger pistol without the

assistance of the inventories. Moreover, as already noted by this court, both

Pearson and Watson identified the pistols at the appellant’s trial as pistols stolen

from Wink’s. Finally, even absent the identification of the AMT and Ruger pistols,

the evidence of the appellant’s guilt was overwhelming. This issue is without merit.

D. The Jury’s Exposure to Evidence of Other Crimes Committed by the

Appellant.

Citing Tenn. R. Evid. 404(b), the appellant additionally contends that

the trial court erroneously declined to declare a mistrial due to the jury’s exposure on

four occasions to evidence of other crimes committed by the appellant. First, the

appellant contends that, during his opening statement, the prosecutor improperly

indicated that the appellant had previously engaged in shoplifting. Second, the

appellant contends that evidence tags, attached to guns introduced into evidence,

contained references to drug-related charges. Third, the appellant asserts that

Officer Nolton referred to these drug charges during his testimony. Fourth, the

appellant notes that Investigator Holt, in reading the appellant’s statement to the

jury, included a reference to drug use by the appellant.

A mistrial in a criminal case should only be declared in the event of

“manifest necessity.” State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998), cert. denied,

U.S. , 119 S.Ct. 1501 (1999). In other words, the entry of a mistrial is

21

appropriate only if a miscarriage of justice will otherwise occur. State v. Allen, 976

S.W.2d 661, 668 (Tenn. Crim. App. 1997). On appeal, our supreme court has

observed that

“[w]hether an occurrence during the course of a trial

warrants the entry of a mistrial is a matter which

addresses itself to the sound discretion of the trial court;

and this court will not interfere with the exercise of this

discretion absent clear abuse appearing on the face of

the record.”

State v. Burns, 979 S.W.2d 276, 293 (Tenn. 1998), cert. denied, U.S. , 119

S.Ct. 2402 (1999)(citation omitted). See also Hall, 976 S.W.2d at 147; Allen, 976

S.W.2d at 668.

Initially, we note that the first three occurrences cited by the appellant

involved references to other crimes committed by Pearson and Anderson rather

than by the appellant. The evidence adduced at trial unequivocally reflected that the

appellant was not involved in these offenses or even present during the commission

of these offenses, and the trial court instructed the jury that the appellant was not

involved in these offenses. Under these circumstances, we cannot conclude that

the trial court abused its discretion in denying the appellant’s motions for a mistrial.

Somewhat more problematic was Investigator Holt’s inclusion, during

his recital of the appellant’s statement, of a reference to drug use by the appellant.

Specifically, Investigator Holt recited the appellant’s statement that the appellant,

Anderson, and Watson were smoking marijuana when they discussed robbing

Wink’s. On appeal, the State concedes that the appellant’s statement to the police

concerning his use of marijuana was not admissible at trial pursuant to Tenn. R.

Evid. 404(b). However, the State correctly notes that the trial court provided the

following curative instruction to the jury:

There is something in the statement about smoking

marijuana. Now, let’s don’t lose our focus about this

case. This case is not about smoking marijuana. This

case is about an alleged murder, robbery and firearms

violations. That’s what this case is about. So let’s don’t

draw any inferences against the defendant, Michael

Carroll, on account of this marijuana thing that’s in there.

It would be just as well that it wasn’t even in there, but

there it is, it’s part of the statement, so you know it, but

22

that’s not what this case is about.

Without evidence to the contrary, we must presume that the jury followed the

instructions of the trial court. Hall, 976 S.W.2d at 148; State v. Williams, 929

S.W.2d 385, 388 (Tenn. Crim. App. 1996). 8 Accordingly, we again decline to

overrule the trial court’s exercise of discretion in denying the appellant’s motion for a

mistrial.

E. Motion for Judgment of Acquittal and Sufficiency of the Evidence

Finally, the appellant contends that the trial court erred in denying his

motion for a judgment of acquittal at the close of the State’s proof and that the

evidence is insufficient to support the jury’s verdict of guilt. Again, the trial court did

grant the appellant’s motion with respect to the charged offense of conspiracy to

commit especially aggravated robbery, instructing the jury instead on the lesser

included offense of conspiracy to commit aggravated robbery. The court otherwise

denied the appellant’s motion, and the jury found the appellant guilty of all charged

offenses.

We apply the same standard of review both to the trial court’s denial of

the appellant’s motion for a judgment of acquittal and to the sufficiency of the

evidence underlying the jury’s verdict. State v. Ball, 973 S.W.2d 288, 292

(Tenn.Crim.App. 1998). Viewing the evidence in the light most favorable to the

State, this court must determine whether any “reasonable trier of fact” could have

found the essential elements of the charged offenses beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e). We conclude

that the evidence amply supports the jury’s verdict.

8

Mor eove r, as c orre ctly no ted b y the tria l cour t, the a ppe llant w as aw are o f the c onte nts o f his

statement prior to trial and was aware that the State intended to introduce the statement. Yet, he

never submitted a motion to the court to redact the portion at issue or otherwise brought the disputed

portion to the attention of the trial court. Arguably, this issue is waived pursuant to Tenn. R. App. P.

36(a). See State v. Jones, No. 01C01-9708-CC-00326, 1999 WL 632305, at *15 (Tenn. Crim. App. at

Nash ville, Augus t 19, 1999 )(Tenn . R. Evid. 40 4(b) plac es the bu rden up on the de fendan t to reques t a

jury out hearing).

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IV. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court.

Norma McGee Ogle, Judge

CONCUR:

David H. Welles, Judge

David G. Hayes, Judge

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