The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER SESSION, 1996
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9601-CR-00013
FILED
)
October 2, 1997
Appellee, )
)
Cecil Crowson, Jr.
) SHELBY COUNTY Appellate C ourt Clerk
VS. )
) HON. JOHN P. COLTON, JR.
TELLY M. SLAYON, ) JUDGE
)
Appellant. ) (First Degree Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
WALKER GW INN CHARLES W. BURSON
Assistant Public Defender Attorney General and Reporter
201 Poplar Suite 2-01
Memphis, TN 38103 MICHAEL J. FAHEY, II
Assistant Attorney General
DENIELLE V. YOUNG
Legal Assistant
450 James Robertson Parkway
Nashville, TN 37243
WILLIAM L. GIBBONS
District Attorney General
JERRY KITCHEN
Assistant District Attorney
201 Poplar, Third Floor
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On February 10, 1995, Appellant T elly Slayton was fou nd guilty by a
Shelby County Criminal Court jury of murd er in the perpe tration o f robbe ry in
violation of Tennessee Code Annotated Section 39-1 3-202(2) (Su pp. 1996). The
trial court ordered a sentence of life imprisonment. On appeal, Appellant raises
three issues for review: (1) whether the evidence presented at trial was sufficient
as a matter of law to s ustain the co nviction ; (2) wh ether th e trial co urt erre d in
overruling Appe llant’s m otion to supp ress h is statement given to police officers;
and (3) whether the trial court erred in admitting, over Appellant’s objection, a
photograph of the victim taken while the victim was alive.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
Factual Background
On the afternoon of Aug ust 6, 1 992, th e victim , Dan ny W hite, an d his
friend, Tom Smith, entered the B & B Gro cery in S helby C ounty to play p ool in
the groce ry store ’s poo lroom locate d in the back of the s tore. O n his way to the
poolroom, the victim stoppe d at the cash re gister and purchased some cigarettes.
The cash register attendant noticed that the victim had at least two hundred
dollars with him. W hile the victim and Mr. Smith were in the poolroom, Appellant
was seen entering the poolroom . Minutes later while Mr. Smith was in the
bathroom, he ove rhear d a de man d for m oney, the victim ’s refusal, and a gunsh ot.
Upon exiting the bathroom, Mr. Smith found his friend dead. The victim had been
shot in the chest with a .38 caliber gun. Immediately after the shooting, Appellant
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was seen w earing a ski mas k running out of the s tore. On ly sixty-five cents in
chang e was fo und on the victim’s b ody.
On August 7, 1995, Appellant, a juvenile and his mother agreed to go with
the police to the police homicide department for questioning. Upon arriving at the
police station, Ap pellant an d his mo ther were taken to an interview room.
Appellant was advised of his Miranda rights and signed a waiver of rights form.
At some point during the questioning, Appellant’s mother was asked to leave, and
she left voluntarily. After questioning, Appellant indicated that he wanted to make
a statement. Before giving his statement, Appellant’s mother came back into the
interview room and the police investigators again read Appellant his rights.
Appellant then adm itted to k illing the victim b ecau se the victim had ro bbed him
the day before the incident. The investigating officer testified that no threats or
intimidation was used to obtain Appellant’s statement. After a hearing on
Appe llant’s motion to suppress, the trial court found that Appellant’s confession
was voluntary and admissible.
I. Sufficiency of the Evidence
Appellant first claims that the evidence is insufficient, as a matter of law,
to sustain th e convictio n for mu rder in the p erpetration of robbery. When an
appeal challe nges the su fficienc y of the e videnc e, the s tanda rd of rev iew is
whether, after vie wing th e evide nce in the light most favorable to the State, any
rational trier of fact could have found the essential elements of the crime beyond
a reason able do ubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); State v.
Evans, 838 S.W .2d 185 , 190-91 (Tenn . 1992), cert. denied, 114 S. Ct. 740
(1994); T.R.A P. 13(e). On appeal, the State is entitled to the strongest legitimate
view of the e vidence and all reasonable or legitimate inferences which may be
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drawn therefrom . State v. Cabbage, 571 S .W .2d 83 2, 835 (Ten n. 197 8). Th is
Court will not reweigh the evidence, re-evaluate the evidence, or su bstitute its
evidentiary inferences for those reached by the jury. State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). As the Supreme Court of Tennessee said in Bolin v.
State:
This well-settled rule rests on a sound foundation. The
trial judge and the jury see the witnesses face to face,
hear their testimony and observe their demeanor on the
stand. Thus the trial judge and jury are the primary
instrum entality of justic e to determine the weight and
credibility to be given to the testimony of witnesses. In the
trial forum alone is there human atmosphere and the
totality of the evide nce ca nnot be reproduced with a
written reco rd in this Co urt.
405 S.W .2d 768 (1966). T hus, a jury v erdict is en titled to grea t weight.
Once approved by the trial court, a jury verdict accredits the witnesses
presented by the State and resolves all conflicts in favor of the State. State v.
Hatchett, 560 S.W .2d 627 (Tenn . 1978); State v. Townsend, 525 S.W.2d 842
(Tenn. 1975). The credibility of witnesses, the w eight to be given the ir testimony,
and the reconciliation of conflicts in the proof are matters entrusted exclus ively
to the jury as trier of fact. State v. Sheffie ld, 676 S.W .2d 542, 547 (Tenn. 198 4).
A jury’s guilty verdict removes the presumption of innocence enjoyed by the
defendant at trial and raise s a presu mption of guilt. State v. Tug gle, 639 S.W.2d
913, 914 (T enn. 19 82). The defendant then bears the burden of over com ing this
presu mptio n of guilt on ap peal. State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977).
First-degree murder includ es “[a] killing of another committed in the
perpetration of or attempt to perpetrate any . . . robbery . . . .” Tenn. Code Ann.
§ 39-13-2 02(2). Ap pellant argues tha t the evid ence subm itted at tria l is
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insufficient to support his conviction because there was no “clear” evidence that
he intended to rob the victim. Counsel for Appellant suggests the possibility that
the victim lost the money he brought into the poolroom while gambling. Appellant
also argues that Mr. Sm ith’s testimony that he overheard someone demand
money from the victim should not be believed because Mr. Smith was smoking
crack in the b athroo m wh en he supp osed ly overheard the demand. Furthermore,
Appellant claims that no one identified the voices of either the person making the
alleged demand for money or the victim’s voice.
W hile Appellant’s speculation about what could have happened to the
victim’s money is possible, the jury appare ntly believed App ellant took the m oney.
In addition, the credib ility of witnesses is entirely within the provinc e of the jury.
The fact that Mr. Smith was high on cocaine when he heard the demand for
money was considered by the jury which nevertheless found Smith credible.
Sheff ield, 676 S.W.2d at 547. Finally, Appellant is incorrect in his assertion that
no one iden tified the voice of the victim . Mr. Smith testified that wh ile he w as in
the bathroom he heard the victim refuse a demand for money. Although no one
identified Appellant’s voice, Appellant was positively identified entering the
poolroom minutes be fore the fatal shot wa s fired and imm ediately thereafter.
Appellant admitted shooting the victim because the victim had allegedly robbed
Appellant the day before the incident. The victim was seen with at le ast two
hundred dollars before the shooting, and only sixty-five cents was found on the
victim after the shooting. Clearly, the evidence was sufficient as a matter of law
to support Appellant’s conviction.
II. Denial of Appellant’s Motion to Suppress
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Appellant next argues that the trial jud ge erred in denying his motio n to
suppress his statement given to the police. Appellant claims that the statement
was not given voluntarily because he wa s only sixteen at the time of the
statem ent, the police excluded his mother from questioning, and the police
threatened him with the electric chair. The question before us is whether, under
the totality of the circumstances, Appellant’s confession was the resu lt of a
knowing and intelligent waiver of constitu tional rights. State v. Gordan, 642
S.W.2d 742, 744 (Tenn. Crim. App. 1982). In making that determination, we are
mindful that the trial court’s findings on a motion to su ppress are c onclusive on
appeal unless th e eviden ce prep ondera tes aga inst those findings. Braziel v.
State, 529 S.W .2d 501 , 506 (T enn. C rim. App . 1975).
In the instant case, the record reveals that Appellant was informed of his
Miranda rights befo re being question ed. See Miranda v. Arizona, 86 S.Ct. 1602
(1966). After being informed of his Miranda rights, he signed a waiver o f rights
form. Appellant was asked if he understood these rights to which he responded
affirmatively. Before Appellant gave h is state men t adm itting to k illing the victim
he was again explained his Miranda rights. While Appellant claims that the
investigating officer threatened him with the electric chair, the investigating officer
denied ever making such a comment. Although Appellant’s mother was not
present throughout questioning, the volun tarines s and adm issibility o f a juven ile’s
confession is not dep enden t upon the presen ce of his p arents or an attorney at
interrogation when full Miranda warnings have been given and understood.
Braziel, 529 S.W .2d at 506 . We find nothing in the record that preponderates
again st the trial court’s findings that Appellant’s statement was knowingly and
voluntarily entered.
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III. Admiss ibility of Pho tograp h of the Victim
Next Appellant argues that the trial judge erred in allowing the State to
introduce a photograph of the vic tim taken while he was alive. The picture of the
victim depicts the victim in his military uniform. Appellant contends that the
photo graph was n ot relev ant an d was overly p rejudic ial.
The admissibility of photographs lies within the sound discretion of the trial
judge and will not be overturned on appeal except upon a clear showing of an
abuse of discretion . State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). Our
courts have held that pictures of a homicide victim should not be admitted at trial
because they are o f tenuou s relevan cy. See, e.g., State v. Dicks, 615 S.W.2d
126, 128 (T enn. 19 81); State v. Strouth, 620 S.W .2d 467, 472 (Tenn. 198 1);
State v. Richardson, 697 S.W.2d 594, 597 (Tenn. Crim. App. 1985). As the court
said in State v. Dicks, “it would have been better had the ‘before’ picture of [the
victim] been e xcluded since it adde d little or nothing to the sum total of
knowledge of the jury.” 615 S.W.2d at 128.
Here, the relevance of the photograph of the victim taken while he was
alive was minimal. However, in view of the overwhelming evidence that Appellant
shot the victim, admission of this photograph was at most harmless error. Tenn.
R. App. P. 36 (b).
W e conc lude th at the e videnc e was sufficie nt as a matte r of law to susta in
Appe llant’s conviction , that App ellant’s state ment to the police admitting to the
shooting was vo luntary , and th at the a dmis sion of the photograph taken of the
victim while he was alive did not constitute prejudicial error. The judgment of the
trial court is therefore affirmed.
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____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
JOSEPH M. TIPTON, JUDGE
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