State of Tennessee v. Terry Norris

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 3, 2014 Session

STATE OF TENNESSEE v. TERRY NORRIS

Direct Appeal from the Criminal Court for Shelby County

No. 97-08293 James C. Beasley, Jr., Judge

No. W2000-00707-CCA-R3-CD - Filed November 18, 2014

In this procedurally complex case, a Shelby County jury convicted the Defendant, Terry

Norris, of second degree murder in 1999, and the trial court sentenced him to twenty-one

years of incarceration. After several proceedings and filings, discussed in detail below, the

U.S. Sixth Circuit granted the Defendant habeas corpus relief unless the State allowed the

Defendant to reopen his original direct appeal and raise an issue regarding whether his

confession should have been suppressed pursuant to County of Riverside v. McLaughlin, 500

U.S. 44 (1991). The State allowed the Defendant to reopen his appeal. On appeal, the

Defendant contends that the trial court erred when it denied his motion to suppress his

confession to police because he gave his confession after being held for more than forty-eight

hours without a probable cause hearing. After a thorough review of the record and the

applicable authorities, we conclude that we must address the issue before us for plain error.

After conducting our plain error review, we conclude that the Defendant is not entitled to

relief.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which R OGER A. P AGE and

R OBERT L. H OLLOWAY, J R., JJ., joined.

Amy Rao Mohan, Nashville, Tennessee, and Kellen S. Dwyer, Washington, D.C. (on

appeal); Michael Johnson and Garland Erguden, Memphis, Tennessee (at trial), for the

appellant, Terry Norris.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant

Attorney General; William L. Gibbons, District Attorney General; and Karen Cook, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

A. Trial

In July 1997, a Shelby County grand jury indicted the Defendant for one count of

second degree murder. In our opinion denying the Defendant’s first appeal, we summarized

the facts presented as follows:

On March 10, 1997, nineteen-year-old victim Keith Milem was found

shot to death outside the home where he lived with his uncle. On the evening

of March 11, 1997, the Defendant was taken into custody by police and

questioned about the crime. On March 13, 1997, the Defendant confessed to

shooting the victim. The Defendant informed police of the location of the

murder weapon, a nine-millimeter semiautomatic pistol, and police recovered

the gun and submitted it for testing. Results of tests performed on the gun

indicated that the fatal shots had indeed been fired from the Defendant’s gun.

At trial, Lakendra Lavonne Mull testified that she and the Defendant

were roommates at the time of the crime, and she reported that at that time, the

Defendant was dating her cousin, Lateeska Newberry. Mull explained that the

victim was also her distant cousin, and she stated that Newberry and the victim

had known one another since attending elementary school together. Mull

characterized the victim and Newberry as her “best friends.”

Mull testified that on March 10, 1997, the victim, Newberry, and a third

friend named Tim visited her apartment during the afternoon. Mull stated that

the Defendant was present at their apartment when the victim initially arrived,

and she reported that the Defendant spoke to the victim briefly upon the

victim’s arrival. Approximately two hours after the victim arrived at the

apartment, the Defendant left and later returned with his brother. At the time

the Defendant returned, the victim, Newberry, Tim and Mull were engaged in

conversation, and the victim and Tim were drinking alcoholic beverages. Mull

testified that the Defendant and his brother stayed only ten minutes upon their

return to the apartment before departing a second time. Mull testified that the

Defendant subsequently telephoned her to tell her that he had left his gun at the

apartment, and he soon returned to pick up the gun. Mull explained that her

young daughter lived with them, and the Defendant generally did not leave the

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gun in the apartment with Mull’s daughter. After picking up the gun, the

Defendant left for a final time.

Mull recalled that approximately three hours after the Defendant picked

up his gun, she drove the victim home. Mull testified that the victim was “kind

of staggering because he had been drinking.” However, she maintained that

the victim “probably was more sleepy than full of alcohol” because he had not

drunk “all that much” while at her apartment. Mull recalled that when she left

her apartment at approximately 9:55 p.m., she saw the Defendant parked

across the street from their apartments in his “burgundy or maroon” 1993

Grand Am. She stated that when she pulled out of the apartment complex, she

saw the Defendant begin to follow her car without his lights on, and she

testified that the Defendant followed her car to the victim’s home, a drive

which Mull testified took three to four minutes. Mull reported that after she

dropped the victim off in front of his home and turned her car around, the

Defendant flashed his “high beams” at her car. Mull stated that she last saw

the victim standing at the door to his home as she drove away.

Mull reported that the Defendant did not return home on the night of the

murder, but she stated that the Defendant called her once that night. She

recalled that at approximately 6:00 a.m. the following morning, the Defendant

returned to their apartment to pick up clothes.

Mull testified that the Defendant normally carries a gun. Mull further

testified that approximately a week prior to the homicide, she saw the

Defendant put mercury covered with candle wax on the tips of bullets. When

she asked him what he was doing, the Defendant explained that the mercury

“makes the bullet explode when it enters something.”

On cross-examination, Mull acknowledged that she told police she

believed the Defendant thought that his girlfriend, Lateeska Newberry, was in

her car on the night of the murder. She explained to police that she thought the

Defendant was jealous after seeing the victim and Newberry together at her

apartment earlier in the evening. She stated that she had known the Defendant

to be jealous “[o]ver [Newberry].” However, she stated that while the victim

was at her apartment on the day of the murder, the victim and Newberry were

not affectionate and were “sitting across the room from each other.”

Charles Edward Milem, the victim’s uncle, testified that the victim was

living with him at the time of his death. Milem testified that he was in his

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bedroom when the victim was shot. Milem recalled that from his bedroom

window, he saw the victim get out of Mull’s car and walk to the front porch

of their home. As Mull’s car pulled away, Milem saw another car immediately

pull up on “the wrong side of the street.” Milem next heard the victim ring the

doorbell, and he then heard voices calling the victim. Milem testified, “One

voice said, hey. My nephew repeated, who [sic] there, who [sic] there. And

another voice immediately said, come here.” Following this, Milem heard

three gunshots, which he claimed came from the car that had pulled up after

the victim was dropped off. At this point, he could no longer see the victim

standing in the street. Milem rushed to the door, saw the victim lying in the

street, and saw a car pull away. Milem stated that the car from which the shots

were fired “looked white up under the street lights” and “sound[ed] like a

Cutlass.” When Milem approached the victim, he noticed that the victim’s

hands were still in his pockets.

Byron Braxton of the Memphis Police Department testified that he was

called to the crime scene on March 10, 1997. He recalled that when he arrived

at the scene, paramedics were already there. Braxton testified that he saw the

victim lying face-down in the middle of the street, and when the paramedics

rolled him over, Braxton saw that the victim’s hands were still in his pockets.

He stated, “[T]he shooter wasn’t there to our knowledge. The consensus of the

witnesses were that they saw a white box-type Chevy headed toward [a nearby

street]. It was occupied by two to three male blacks. But they really couldn’t

give a description on the individual.” Officers recovered three nine-millimeter

shell casings from the scene. They also found a bullet lodged in the door of

a house near the home in which the victim lived.

The State introduced the Defendant’s March 13, 1997 statement

through the testimony of Memphis Police Sergeant Dwight Woods. Woods

participated in taking the Defendant’s statement, which includ[ed] the

following:

Q. Terry, do you know Keith Milem?

A. Yes.

Q. Are you aware that Keith Milem was shot and killed on

Monday, March 10, 1997 at approximately 10:00 PM in

front of 610 Loraine Drive?

A. Yes.

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Q. Did you shoot Keith Milem?

A. Yes.

Q. What did you shoot Keith Milem with?

A. A Smith and Wesson 9mm Automatic.

Q. How many times did you shoot Keith Milem?

A. I don’t know.

Q. Why did you shoot Keith Milem?

A. Because he attacked me and hit me in the face and

grabbed my arm.

Q. Terry, tell me in your own words exactly what occurred

before, during and after the shooting?

A. Well from a couple of days before the shooting I heard

my roommate Kim and my girlfriend Ranata talking

about their cousin Keith or “Black” which is what they

called him and I was suspicious about him the whole

time and the day of the shooting he came to my home at

1104 Craft Road #1 (Southern Hills Apartments). I came

home at about 9:00 that evening and saw him and my

girlfriend talking. He was on the couch and she was on

the love seat directly in front of him talking. So, I left[,]

. . . thinking that they may be having a relationship, I was

mad.

I left my apartment and when I returned I saw my

roommates [sic] car leaving the apartments and I thought

my girlfriend was in the car also so I followed them to

talk to my girlfriend but when they got to Keith’s house

Ranata was not in the car so I stopped to talk to Keith. I

called Keith to the car and asked him what was up and he

asked what was I talking about and I asked was him and

Ranata in a relationship and he told me that it wasn’t my

business so I told him that it was my business and it

seems as if he saw my gun on the seat and looking at the

gun, he hit me on the left side of my face and like dove

into the car. I grabbed my gun, he grabbed my arm and

I snatched away from him and pointed my gun at him and

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pulled the trigger. When I saw him fall, I took off. After

I left I went to the Kings Gate Apartments and got into a

fight with a young man and then I went to Orange

Mound where I hid my gun in [an] abandoned apartment

building on Arbra.

Q. Terry, when you were following Kim and Keith, did you

have your lights on or off?

A. I had my lights on but I turned them off when we got to

the corner of Tulane and Shelby Drive to see who was in

the car but I could not.

Q. Terry, what direction did you leave after you shot Keith?

A. East on Loraine towards Tulane, I turned left and went

north on Tulane to Shelby Drive. Turned right on Shelby

Drive and went east.

Q. Terry, describe your car that you drive?

A. I drive a burgundy Pontiac Grand AM, 1993, 2-door SE.

Q. Terry, does your car have fog lights on it?

A. Yes sir, it has white fog lights.

Q. Terry, do you know if Keith was drinking or drunk?

A. Yes. He was drinking a gallon of wine with a friend in

my home when I left. When I left and came back, he was

still drinking some of the wine a while later.

Q. Terry, were you drinking or using any type [of] drugs?

A. No sir.

Q. Terry, did you recently put the mercury out of a

thermometer into the end of the bullets that were in your

gun and cover the ends with candle wax?

A. Yes sir[,] . . . I did that but not recently. It was when I

first moved in to [sic] the apartment.

Q. Terry, when you first encountered Keith, was it your

intention to shoot him?

A. No.

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Q. Terry, is there anything else you can add to this statement

that would aid in this investigation?

A. Yes sir, I’m sorry for what happened. I wish I could take

it back.

Q. Did you give this statement of your own free will without

any promises, threats or coercion?

A. Yes.

Q. Were you advised of your rights before you gave this

statement?

A. Yes.

The Defendant testified on his own behalf at trial. He claimed that on

one of the occasions while he was away from his apartment on the afternoon

prior to the murder, he received a page from his girlfriend, who was at his

apartment with Mull and the victim. The Defendant stated that as he drove

back to his apartment in response to the page, he passed Mull’s car on the road.

He testified that he believed his girlfriend was in the car with Mull, and he

therefore “blinked” his lights at Mull’s car. The Defendant maintained that

when Mull didn’t stop, he blew his horn and flashed his lights a second time.

He then followed her. The Defendant maintained that he turned off his lights

in order to see who was in Mull’s car. He explained, “I couldn’t see because

her car . . . had been in an accident. It was real . . . crushed up on one side, and

I couldn’t see in it.” The Defendant stated that he followed Mull’s car,

continuing to try to get her attention, but eventually lost the car after he turned

around.

The Defendant testified that after losing sight of Mull’s car, he saw the

victim standing in the yard of his uncle’s home. The Defendant recalled that

he “called [the victim] over” to his car. When the victim approached,

according to the Defendant, the two men engaged in an argument about the

Defendant’s girlfriend. The Defendant described the victim as angry and

stated that the victim’s speech was slurred. The Defendant maintained that

during the argument, the victim hit him, and he tried to “fend [the victim] off.”

The Defendant claimed that the victim then “dove in[to]” his car, while still

hitting the Defendant, and attempted to grab the Defendant’s gun, which was

in plain view. According to the Defendant, he tried to push the victim out of

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the car, and as he pushed the victim away, he raised his gun and shot the

victim.

The Defendant admitted that at the time he shot the victim, he was

“enraged.” The Defendant also admitted that on the night of the murder, he

was “suspic[ious]” that the victim and Newberry, his girlfriend, were starting

a relationship. He testified that on the day of the shooting, he and Newberry

were in “a fight” and were not really speaking. The Defendant recalled that

he was “upset at [his] girlfriend.”

The Defendant testified that on the day of the shooting, he retrieved his

gun from the apartment that he shared with Mull because of Mull’s “under-age

daughter and just for safety reasons.” He admitted to putting mercury on the

tips of bullets, stating that “if [the mercury] got into a person . . . it would

make the wound more severe.” However, the Defendant maintained that he

altered his bullets solely “for protection.”

A videotaped deposition of Dr. O.C. Smith, an assistant medical

examiner for Shelby County and Deputy Chief Medical Examiner for western

Tennessee, was admitted into evidence. In his deposition, Smith stated that he

performed the autopsy on the victim in this case. He stated that the victim died

of multiple gunshot wounds. Smith specified that three bullets entered the

Defendant’s body, two of which exited the victim’s body. Smith stated that

one of the bullets which entered the victim’s body severed the victim’s spinal

cord, rendering him incapacitated with “no voluntary control over his

extremities.”

Dr. Smith retrieved a “plastic property material” from the interior of one

of the victim’s bullet wounds that he concluded was “consistent with candle-

wax.” Smith explained that “some people will [put candle wax on the tip of

a bullet] to cause a bullet to behave more like a full-metal jacket.” He stated

that a “full-metal jacket” is a bullet “that does not deform or fragment, and

therefore . . . does not cause increase[d] suffering.” He further explained that

“[t]here’s a concept out in the community, especially in the media industry,

that if a hollow-point bullet is filled with metallic liquid mercury and that

liquid mercury would be held in place by some devise [sic], that if that bullet

contacts the body at high speed it will cause an almost explosive effect on the

tissue.”

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Smith also noted a “pre-death” injury to the victim’s “ring finger on his

left hand that is a[n] evulsive type or a tearing type of laceration that peeled the

skin down towards the finger-tip.” He explained that “something snagged the

skin with sufficient force to peel the skin down.” Smith further noted “what

is known in layman’s terms . . . as powder burns, or a stipple type pattern on

the inside of [the victim’s] left wrist.” Smith stated that “stipple will mark the

skin out to about twenty-four inches, for most handguns.” Finally, Smith

noted an injury on the back of the victim’s head comprised of “a large area of

bruising[,] . . . some skin scraping and . . . some skin tearing.” He explained,

“It’s an injury due to contact with a broad, blunt object. Certainly a fall to the

ground can cause something like that.”

State v. Terry Norris, No. W2000-00707-CCA-R3-CD, 2002 WL 1042184, at *1-6 (Tenn.

Crim. App., at Jackson, May 21, 2002), perm. app. denied (Tenn. Nov. 4, 2002).

Following a trial, the jury convicted the Defendant of second degree murder, and the

trial court sentenced him to twenty-one years in the Tennessee Department of Correction.

Id. at *1.

The Defendant appealed his conviction to this Court. Id. He contended that: (1) his

counsel were ineffective for failing to move for suppression of the Defendant’s confession

based upon a violation of his Fourth Amendment rights; and (2) his counsel were ineffective

for arguing a defense theory to the jury that was inconsistent with both the Defendant’s

wishes and testimony. Id. We concluded that the Defendant’s confession was not obtained

in violation of his Fourth Amendment rights and, thus, that his counsel were not ineffective

for failing to file a motion to suppress his statement based on the delay between the time of

his arrest and the judicial determination of probable cause. Id. We further concluded that

any error by defense counsel concerning the choice of defense strategy did not result in

prejudice to the Defendant. Id. We therefore affirmed the judgment of the trial court. Id.

The Defendant appealed this Court’s holding to the Tennessee Supreme Court. Id.

The Tennessee Supreme Court denied his request for permission to appeal. Id.

B. Petition for Post-Conviction Relief

The Defendant filed a pro se petition for post-conviction relief, followed by an

amended petition after the appointment of counsel and a supplement to the amended petition.

The Defendant alleged that appellate counsel was ineffective for not correctly stating his

issue pursuant to State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996). In Huddleston, our

Supreme Court held that a judicial determination of probable cause must occur within

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forty-eight hours of a warrantless arrest to protect a defendant’s Fourth Amendment rights.

924 S.W.2d at 672 (adopting McLaughlin, 500 U.S. 44). A confession obtained in violation

of this forty-eight-hour time line is subject to being excluded under a “fruit of the poisonous

tree” analysis. Id. at 674.

This Court summarized the facts presented at the petition for post-conviction relief

hearing as follows:

[Defendant’s] Proof

At the [Defendant’s] evidentiary hearing, Lieutenant A.J. Christian of

the Brighton Police Department testified that in 1997 he was a detective with

the Memphis Police Department’s Homicide Bureau involved in the

[Defendant’s] case. Christian said that the [Defendant’s] arrest report showed

that he was in police custody at the homicide office on March 11, 1997, at 7:30

p.m. He could not recall the exact time that the [Defendant] was taken into

custody and explained that the arrest ticket would have the actual time and that

the arrest narrative report “was just a supplement documenting the course of

action that was taken after he was taken into custody.”

Marcia Daniel, the [Defendant’s] mother, testified that on March 11,

1997, police officers “called between 4:30 [p.m.] and five looking for [the

Defendant].” Daniel located the [Defendant] and said he arrived home

“between five and 5:15 [p.m.].” The police, who had arrived at the residence

“maybe three to five minutes” before the [Defendant], left with him

“approximately about 5:45” p.m. Daniel testified that she told trial counsel,

but not appellate counsel, of these events. Daniel acknowledged that the

[Defendant] called her on March 13, 1997, and that, although she could not

recall the time of the phone call, he told her he had agreed to talk to the police

but wanted to talk with her first.

Trial counsel testified that during his representation of the [Defendant],

he believed he had “open-file discovery” from the State. Asked if he was

aware that the [Defendant] was in police custody at 7:30 p.m. on March 11,

1997, trial counsel stated “that either [he] was aware or [he] should have been

aware. [He], frankly, [did not] remember if anything was on the arrest ticket

or not.” Trial counsel said that at the time he argued the [Defendant’s] motion

to suppress his statement to police, he was aware of the “[t]he 48 hour rule”

announced in Huddleston but acknowledged he “failed to raise that issue.”

Trial counsel also acknowledged that he did not object to the definition of

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“knowingly” in the jury instructions. On cross-examination, trial counsel

testified that prior to the [Defendant] giving his statement on March 13, 1997,

he was presented with “an advice of rights form” at 4:05 p.m. and signed it at

4:12 p.m.

The [Defendant] testified that he told appellate counsel that he was

arrested at his mother’s house on March 11, 1997, “[b]efore 7 p.m.” and that

more than forty-eight hours passed before he gave his statement to police on

March 13, 1997. He acknowledged that the advice of rights form showed that

he was given the form at 4:05 p.m. and that he signed it at 4:12 p.m. on March

13, but said he did not put the time on it and could not recall exactly what time

he signed it, only remembering “[it] was after the evening meal in the jail.”

The [Defendant] also acknowledged signing his police statement at 8:20 p.m.

and said that he actually gave the statement verbally before this time.

On cross-examination, the [Defendant] acknowledged that he was not

in custody at 4:05 p.m. on March 11, 1997. He testified that the police initially

came to his mother’s house that day at 6:05 p.m., but left because he was not

at home, and then returned “[s]omewhere around” 7:00 p.m. to question him.

He acknowledged that he agreed to talk to the police on March 13, 1997, in

exchange for being allowed to talk to his mother, stating that he was able to

reach her at 6:50 p.m.

State’s Proof

Appellate counsel testified that he represented the [Defendant] on his

motion for a new trial and on appeal. Discussing the [Defendant’s]

Huddleston claim, which he raised in the [Defendant’s] motion for a new trial

and on appeal, appellate counsel said he focused on the fact that the

[Defendant’s] confession “was clearly illegal” because “from the record [the

police] didn’t have probable cause to arrest [the Defendant] in the first place.”

Asked if he thought the amount of time the [Defendant] was in custody prior

to giving his confession was a valid issue to pursue, appellate counsel

answered that he “apparently” did not because he did not raise it on appeal.

As for the jury instructions defining “knowingly,” appellate counsel stated that

“there’s no question that there was an error in the jury instructions, but [he did

not] think there was any question that it was harmless error” and, therefore, did

not raise it in the motion for a new trial or on appeal.

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Terry Jamar Norris v. State, No. W2005-01502-CCA-R3-PC, 2006 WL 2069432, at *5-6

(Tenn. Crim. App., at Jackson, July 6, 2006), Tenn. R. App. P. 11 application denied (Tenn.

Dec. 18, 2006).

Addressing the issues, this Court affirmed the post-conviction court’s dismissal of the

Defendant’s petition for post-conviction relief. Concerning the Huddleston issue, we stated:

The [Defendant] argues that “appellate counsel was ineffective for

failing to show at [his] motion for new trial hearing that [his confession] was

given more than 48 hours after his arrest in violation of State v. Huddleston.”

However, in the [Defendant’s] direct appeal, this Court determined there was

no Huddleston violation.

Id. at *8. The Court went on to quote from our decision in the Defendant’s direct appeal.

Id. at *8-9. The Court then noted that the post-conviction court, in its order dismissing the

petition for post-conviction relief, found the Defendant’s Huddleston argument to be without

merit. Id. at *9. We quoted the post-conviction court’s findings:

Although the Huddleston issue was addressed on direct appeal, the

Court will quickly address the issue in regard to the ineffective assistance of

counsel claim against Appellate Counsel. [The Defendant] asserts that his

statement should be excluded as “fruit of the poisonous tree” because it was

given after forty-eight (48) hours of detention with no probable cause

determination. However, the testimony does not support the claim. The

[Defendant] signed an Advice of Rights form at 4:12 P.M. on March 13, 1997.

The testimony of [the Defendant’s] mother indicated the police left her home

around 5:45 P.M. on March 11, 1997. The [Defendant] admitted that he was

not in custody at 4:05 P.M. on March 11, 1997; and also admitted he agreed

to talk with police around 4:05 P.M. on March 13, 1997. The [Defendant]

stated that he agreed to speak with police in order to get a phone call to his

mother. His testimony further indicated that he then tried to contact his mother

but was unable to reach her until about 6:50 P.M. on March 13, 1997. The

Police stuck to their word and waited until the [Defendant] was able to speak

to his mother before taking his statement. The [Defendant] cannot claim the

time period was over forty-eight (48) hours when it was due to his desire to

speak with his mother before making his statement.

Id. Our Court went on to hold:

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We agree with the post-conviction court that this issue is without merit.

Although the [Defendant] contends that his direct appeal would have turned

out differently had appellate counsel showed that he was in custody more than

forty-eight hours at the time he gave his statement to police, he has failed to

meet his burden of showing that he actually was in custody more than

forty-eight hours prior to giving his confession at 7:20 p.m. on March 13,

1997. On direct appeal, this court found the [Defendant] was arrested at 8:45

p.m. on March 11, 1997. At the post-conviction hearing, there was only

conflicting testimony offered as to when the [Defendant] was taken into

custody, but no records were entered into evidence to show that this court

erred when, on direct appeal, it concluded that the [Defendant] was arrested

on March 11, 1997, at 8:45 p.m. Accordingly, the record supports the

determination of the post-conviction court that this claim is without merit.

Id.

C. Habeas Corpus Petitions

On February 23, 2007, the Defendant filed a pro se petition for a writ of habeas corpus

in the Circuit Court of Lauderdale County, alleging that his conviction was void because at

the time he was sentenced, Tennessee Code Annotated section 40-35-209(e) did not provide

for 100% sentencing as a violent offender. On February 26, 2007, the habeas corpus court

summarily dismissed the petition, finding that there was nothing on the face of the judgment

to show that the Defendant’s conviction was void or that his sentence had expired. The

habeas corpus court noted that Tennessee Code Annotated section 40-35-501, in effect at the

time of the Defendant’s sentencing, mandated a 100% release eligibility date for a conviction

for second degree murder. The Defendant then filed an appeal to this Court, and we affirmed

the habeas corpus court’s judgment. Terry Jamar Norris v. Tony Parker, Warden, No.

W2007-00594-CCA-R3-HC, 2007 WL 4245730, at *1 (Tenn. Crim. App., at Jackson, Dec.

3, 2007).

On December 10, 2007, the Defendant filed a pro se habeas corpus petition under 28

U.S.C. § 2254 in the United States District Court for the Western District of Tennessee.

Terry Jamar Norris v. Jerry Lester, Warden, 545 F. App’x 320, 323 (6th Cir. 2013). As

relevant to the appeal before us, the Defendant contended that his appellate counsel was

ineffective because he failed to effectively argue that his confession should be suppressed

because he gave it after being held for more than forty-eight hours without a probable-cause

determination, in violation of the forty-eight-hour rule in McLaughlin. Id. The district court

found that all of these claims lacked merit and denied a certificate of appealability (COA).

Regarding the Defendant’s McLaughlin claim, the district court said “Norris . . . cannot

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overcome his failure to demonstrate that he was actually in custody more than forty-eight

hours before giving his confession.”

The United States Court of Appeals for the Sixth Circuit granted the Defendant’s

COA on two issues, only one of which is relevant here: whether the Defendant’s appellate

counsel was ineffective for inadequately presenting a challenge to the Defendant’s

confession based on McLaughlin. Id.

The Sixth Circuit held:

[The Defendant] contends that (1) his appellate counsel was deficient

for failing to argue on direct appeal that [the Defendant’s] right to a prompt

probable-cause determination was violated under McLaughlin; and (2) that

there is a reasonable probability that [the Defendant] would have prevailed on

direct appeal had the McLaughlin issue been raised.

In McLaughlin, the Supreme Court explained the circumstances in

which a proper warrantless arrest can lead to a Fourth Amendment violation

if a probable-cause determination is not held promptly. 500 U.S. at 47, 111

S.Ct. 1661. The Court created a burden-shifting standard that sought to

balance the constitutional right to a prompt probable-cause determination with

the “reasonable postponement” and “inevitable” delays that could result from

“paperwork and logistical problems,” especially in jurisdictions where

probable-cause determinations are combined with other pretrial procedures.

See id. at 55, 111 S.Ct. 1661. If a probable-cause determination occurred

within 48 hours of arrest, the burden is on the arrestee to demonstrate that the

probable-cause determination was “delayed unreasonably.” Id. at 56-57, 111

S.Ct. 1661. Delays “for the purpose of gathering additional evidence to justify

the arrest,” as well as delays “for delay’s sake” were given as examples of

unreasonable delay. Id. at 56, 111 S.Ct. 1661. However, where more than 48

hours elapsed between arrest and probable-cause determination, the burden of

proof lies with the prosecutor, who must demonstrate “the existence of a bona

fide emergency or other extraordinary circumstance” beyond the ordinary

logistics involved in combined proceedings. Id. at 57, 111 S.Ct. 1661.

In State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996), the Tennessee

Supreme Court held that “the exclusionary rule should apply when a police

officer fails to bring an arrestee before a magistrate [for a probable cause

determination] within the time allowed by McLaughlin.” Huddleston, 924

S.W.2d at 673. The Huddleston court held that the “fruit of the poisonous

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tree” analysis should determine whether to suppress statements made during

a detention that violates McLaughlin. Id. at 674 (citations omitted). Where the

state courts refer to a “Huddleston violation,” they are referring by implication

to a McLaughlin violation.

[The Defendant’s] appellate counsel alerted the court to the existence

of McLaughlin on direct appeal, but did not present a McLaughlin challenge

to [the Defendant’s] confession. Without citing McLaughlin, the opening

appellate brief argued that [the Defendant’s] confession must be suppressed

under Huddleston (which merely applies McLaughlin) and focused primarily

on subjective intent as one would for a McLaughlin claim. In his reply brief,

appellate counsel discussed McLaughlin and the 48-hour presumption directly,

but then stated that [the Defendant] complained of a Brown violation.

Certainly appellate counsel did not argue that [the Defendant] had been held

for over 48 hours without a probable cause determination, nor did he dissect

the record to demonstrate this, as would have been necessary to any

McLaughlin challenge.

On direct appeal, the TCCA sua sponte dismissed the possibility of a

McLaughlin claim on the grounds that [the Defendant] was held less than 48

hours, State v. Norris, 2002 WL 1042184 at *9, a conclusion based on an

arrest time of 8:45 p.m. on March 11, when Norris was booked into jail, see

id. at *7. At [the Defendant’s] post-conviction appeal, the TCCA stood by that

arrest time because it concluded that, even after a post-conviction evidentiary

hearing, “there was only conflicting testimony offered as to when the petitioner

was taken into custody.” See Norris v. State, 2006 WL 2069432 at *9. Thus,

the TCCA resolved this ineffective-assistance claim entirely on the merits of

the underlying alleged McLaughlin violation, specifically on the 48-hour

calculation.

Treating the 8:45 p.m. booking time as the arrest time was contrary to

clearly established federal law. Even if there is no formal arrest, a person is

considered seized for Fourth Amendment purposes when, under the

circumstances, a reasonable person would not believe himself free to leave.

See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d

565 (1988). It is undisputed that [the Defendant] was transported in handcuffs

from his mother’s home to the police station. Officer Christian testified that,

at the time [the Defendant] was put into the squad car, he was “taken into

custody” and confirmed that [the Defendant] was not free to leave. Officer

McCommon testified that he and Officer Christian went “[t]o pick [the

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Defendant] up at his home and bring him in for a statement.” Under these

circumstances, a reasonable person would not feel free to “decline the officers’

request[].” See Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115

L.Ed.2d 389 (1991). Accordingly,[the Defendant] was arrested when “taken

into custody” by Officers Christian and McCommon.

However, the TCCA’s conclusion does not rely solely on the 8:45 p.m.

arrest time, but also notes that testimony conflicted as to when [the Defendant]

was taken into custody. Even resolving all testimony conflicts in favor of the

government, it was an unreasonable determination of fact to find that [the

Defendant] was in custody for less than 48 hours at the time he began to

confess. Even if we discount entirely the testimonies of [the Defendant] and

Daniels favoring an earlier time of arrest, it is undisputed that [the Defendant]

was already at the police station at 7:30 p.m. on March 11 and had begun

talking with Sergeant Christian. To find that [the Defendant] was in custody

for less than 48 hours before confessing would require one to believe that [the

Defendant] was free to go at 7:20 p.m. on March 11, and that police took less

than ten minutes to tell him he was being taken into custody, handcuff him,

place him in the back of the cruiser, drive him five-and-a-quarter miles, bring

him into the police station, and begin their interview. This is simply

implausible. Notwithstanding the conflicts in testimony, the state court’s

determination that [the Defendant] was in custody for less than 48 hours prior

to confessing was an unreasonable determination of fact.

Although [the Defendant’s] attorney was deficient in failing to focus on

the precise length of [the Defendant’s] detention and such an argument had a

reasonable probability of persuading the state court that [the Defendant] had

been in custody for over 48 hours prior to giving his statement on March 13,

that fact alone is not enough to prove prejudice. Even if the state court had

concluded that there were more than 48 hours of detention prior to confession,

under Huddleston, Tennessee courts must find that the confession was “fruit

of the poisonous tree” in order to suppress it. 924 S.W.2d at 674-75. The

court would have had to consider four factors: “(1) the presence or absence of

Miranda warnings; (2) the temporal proximity of the arrest and the confession;

(3) the presence of intervening circumstances; and finally, of particular

significance, (4) the purpose and flagrancy of the official misconduct.” See id.

Quoting McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661, the Huddleston court

held that “delay ‘for the purpose of gathering additional evidence to justify the

arrest’” supports a finding of purposeful police misconduct. Id. at 676.

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There is evidence in the record suggesting that officers kept [the Defendant]

detained to gather additional evidence. Captain Logan testified:

[Logan:] Based on [the statements of Lakendra Mull and

Charles Milem] we decided that [the Defendant] was a good

suspect for this homicide.

[The Defendant’s Attorney:] . . . but did you have probable

cause to charge him?

[Logan:] Well, after picking him up and getting him in the office

and talking to him, he admitted to it.

....

[The Defendant’s Attorney:] You had strong suspicions, and you

held him to do further investigation; is that correct?

[Logan:] Yes, we did.

Furthermore, the record contains no alternative explanation for [the

Defendant’s] prolonged detention. See McLaughlin, 500 U.S. at 57, 111 S.Ct.

1661 (listing examples of appropriate reasons for delay: “transporting arrested

persons from one facility to another, handling late-night bookings . . .,

obtaining the presence of an arresting officer who may be busy processing

other suspects or securing the premises of an arrest”). Since purpose is the

most important of the four factors and the burden of proof would have been on

the government instead of [the Defendant], there is a reasonable probability

that the confession would have been suppressed if [the Defendant’s] appellate

counsel had raised the McLaughlin issue in a reasonably competent manner

and persuaded the court on direct appeal that [the Defendant’s] pre-confession

detention was longer than 48 hours.

....

Accordingly, we grant the petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254(d), unless the [the State] reopens [the Defendant’s] appeal

within 180 days to allow him to raise the McLaughlin issue on direct appeal.

Norris, 545 F. App’x at 326-69.

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After the Sixth Circuit’s judgment, the State reopened the Defendant’s appeal to allow

him to raise the McLaughlin issue. That is the issue currently before this Court.

II. Analysis

On appeal, the Defendant contends that the violation of his McLaughlin rights requires

that his confession be suppressed. He asserts that the Memphis Police violated the

Defendant’s right to a prompt probable cause hearing as required by McLaughlin. He notes

that the police arrested him without a warrant and confined him to jail for three nights before

taking him to a magistrate for a probable cause determination. Further, as the Sixth Circuit

noted, the record contains no alternative explanation for the Defendant’s prolonged detention

besides the police’s desire to gather additional evidence.

The State responds by first contending that our review of this issue is limited to plain

error because the Defendant did not raise this issue during his suppression hearing and only

did so during his motion for new trial by indirectly addressing it as an ineffective assistance

of counsel claim. The State asserts that the Defendant cannot show that the trial court

committed plain error when it admitted the confession.

A. Plain Error

As the State points out, this Court has stated: “[A] party is bound by the grounds

asserted when making an objection. The party cannot assert a new or different theory to

support the objection in the motion for a new trial or in the appellate court.” 1 State v.

Adkisson, 899 S.W.2d 626, 634-635 (Tenn. Crim. App. 1994); see State v. Aucoin, 756

S.W.2d 705, 715 (Tenn. Crim. App. 1988) (holding that an appellant cannot object on one

ground and assert a new basis on appeal); see also State v. David Dwayne Smith, No. E2007-

00084-CCA-R3-CD, 2009 WL 230696, at *21 (Tenn. Crim. App., at Knoxville, Feb. 2,

1

In Adkisson, this Court stated:

When, as here, a party abandons the ground asserted when the objection was made

and asserts completely different grounds in the motion for a new trial and in this Court, the

party waives the issue. State v. Matthews, 805 S.W.2d at 781; State v. Aucoin, 756 S.W.2d

at 715; State v. Dobbins, 754 S.W.2d at 641; State v. Davis, 751 S.W.2d at 171; State v.

Brock, 678 S.W.2d at 490. This theory finds its origin in three well-established rules. First,

as a general rule, a party will not be permitted to assert an issue for the first time in the

appellate court. Second, an appellate court will limit its decision to the ground asserted

when the trial court made its ruling. Third, an appellate court will not permit a party to take

advantage of its adversary when it is too late to remedy the basis of the objection.

Adkisson, 899 S.W.2d at 635.

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2009), Tenn. R. App. P. 11 application denied (Tenn. Aug. 17, 2009). When that happens,

the party waives the issue. See Adkisson, 899 S.W.2d at 635; State v. Matthews, 805 S.W.2d

776, 781 (Tenn. Crim. App. 1990); Aucoin, 756 S.W.2d at 715; State v. Dobbins, 754 S.W.2d

637, 641 (Tenn. Crim. App. 1988); State v. Brock, 678 S.W.2d 486, 490 (Tenn. Crim. App.

1984). We may still review the issue for plain error. Adkisson, 899 S.W.2d at 634-635.

In Adkisson, as in this case, the action challenged on appeal was the admission of

evidence. To challenge such a ruling on appeal, the appellant is required by rule not only to

enter a contemporaneous objection, but also to state the “specific ground of objection if the

specific ground was not apparent from the context.” See Tenn. R. Evid. 103(a)(1). The

Defendant in this case did not allege a McLaughlin or Huddleston issue in his motion to

suppress or at the motion to suppress hearing. Instead he raised two issues in his motion to

suppress: (1) that the police were aware that he was an epileptic and willfully withheld his

medication until he gave a statement to the police; and (2) that he refused to sign a waiver

of rights thereby exercising his right to remain silent and further that he asked to speak with

an attorney. Because the Defendant did not object in his motion to suppress on the grounds

of Huddleston or McLaughlin, he has waived this issue, and our review is limited to plain

error review. See Adkisson, 899 S.W.2d at 634.

We may review issues normally considered waived pursuant to the plain error

doctrine. Tenn. R. App. P. 36(b). The doctrine of plain error only applies when all five of

the following factors have been established:

(1) the record clearly establishes what occurred in the trial court;

(2) the error breached a clear and unequivocal rule of law;

(3) the error adversely affected a substantial right of the complaining party;

(4) the error was not waived for tactical reasons; and

(5) substantial justice is at stake; that is, the error was so significant that it

“probably changed the outcome of the trial.”

State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d 274,

282-83 (Tenn. 2000)). “An error would have to [be] especially egregious in nature, striking

at the very heart of the fairness of the judicial proceeding, to rise to the level of plain error.”

State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006).

B. Clear and Unequivocal Rule of Law

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The Defendant asserts that his confession was given after he was illegally detained

for more than forty-eight hours. He notes, among other things, that Captain Logan admitted

that the Defendant “refused to talk” when he was arrested and that he held him for “further

investigation.” He points to Captain Logan’s response that he held the Defendant for further

investigation and interrogation because “we had that right.” The Defendant avers that this

reflects a misunderstanding of McLaughlin, which allows for a reasonable postponement of

a probable cause determination while police cope with everyday problems of processing

suspects but does not give police the “right” to arrest suspects without a warrant and

interrogate them for forty-eight hours before beginning the process of taking the suspect

before a magistrate.

The State counters that the Defendant cannot prove that there has been a violation of

a clear and unequivocal rule of law because, first, the Sixth Circuit improperly found that the

Defendant was detained for more than forty-eight hours. The State asserts that, “Though

there is some ambiguity in the trial-court record, the record fairly indicates that the

confession occurred within 48 hours of the [D]efendant’s arrest.” The State points out that

both Sergeant McCommon and the Defendant testified that the Defendant made an oral

confession to police before he spoke with his mother on the telephone. The State next asserts

that the Defendant’s argument that the police held him for an improper purpose fails because

(1) he has not shown a Huddleston violation and (2) he has not shown that consideration of

the error is necessary to do substantial justice because the record shows that the police

continued to investigate the crime while the Defendant was detained but not that they

detained him so that they could get further evidence to justify the Defendant’s arrest.

We begin with the proposition that “[b]oth the state and federal constitutions protect

against unreasonable searches and seizures; the general rule is that a warrantless search or

seizure is presumed unreasonable and any evidence discovered is subject to suppression.”

State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012). Our Supreme Court has recognized three

categories of police interactions with private citizens: “(1) a full-scale arrest, which requires

probable cause; (2) a brief investigatory detention, requiring reasonable suspicion of

wrongdoing; and (3) a brief police-citizen encounter, requiring no objective justification.”

Id. (citing State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000)).

The law requires that, when a person is arrested without a warrant, he or she must be

brought “before a magistrate to ‘seek a prompt judicial determination of probable cause.’”

Bishop, 431 S.W.3d 22, 42 (Tenn. 2014) (quoting Gerstein v. Pugh, 420 U.S. 103, 125

(1975) (holding that “the Fourth Amendment requires a timely judicial determination of

probable cause as a prerequisite to detention”)); see also State v. Huddleston, 924 S.W.2d

666, 672 n.2 (Tenn. 1996). Tennessee Rule of Criminal Procedure 5(a)(1) provides that

“[a]ny person arrested - except upon a capias pursuant to an indictment or presentment - shall

-20-

be taken without unnecessary delay before the nearest appropriate magistrate.” The

Tennessee Supreme Court has recently stated that “a delay of less than forty-eight hours is

presumptively reasonable” and that when the delay exceeds forty-eight hours, the State must

show that “‘a bona fide emergency or other extraordinary circumstance’ caused the delay.”

Bishop, 431 S.W.3d at 42 (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 56

(1991)). Nonetheless, even a delay of less than forty-eight hours may be unreasonable “if

the delay is ‘for the purpose of gathering additional evidence to justify the arrest’ or if the

delay is ‘motivated by ill will against the arrested individual, or delay for delay’s sake.’” Id.

(quoting McLaughlin, 500 U.S. at 56). “Courts cannot ignore the often unavoidable delays

in transporting arrested persons from one facility to another, handling late-night bookings

where no magistrate is readily available, obtaining the presence of an arresting officer who

may be busy processing other suspects or securing the premises of an arrest, and other

practical realities.” McLaughlin, 500 U.S. at 56-57.

The remedy for failing to bring an arrestee before a magistrate without unnecessary

delay is exclusion of “any evidence obtained by virtue of a suspect’s unlawful detention,”

unless an exception to the exclusionary rule applies. Id. (citing Huddleston, 924 S.W.2d at

673-75). However, “when a suspect is arrested based on probable cause, the ensuing

detention is typically not illegal until it ‘ripens’ into a Gerstein violation.” Id. (citing

Huddleston, 924 S.W.2d at 675). “Obviously, if [an arrestee’s] statement was given prior to

the time the detention ripened into a constitutional violation, it is not the product of the

illegality and should not be suppressed.” Huddleston, 924 S.W.2d at 675.

The first question we must address is whether the police had probable cause to arrest

the Defendant at the time of his arrest. “Probable cause . . . exists if, at the time of the arrest,

the facts and circumstances within the knowledge of the officers, and of which they had

reasonably trustworthy information, are ‘sufficient to warrant a prudent [person] in believing

that the [defendant] had committed or was committing an offense.’” Echols, 382 SW.3d 266,

277-78 (Tenn. 2012) (quoting State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997)); see Beck

v. Ohio, 379 U.S. 89, 91(1964). “‘Probable cause must be more than a mere suspicion.’”

Echols, 382 S.W.3d at 278 (quoting State v. Lawrence, 154 S.W.3d 71, 76 (Tenn. 2005)).

However, probable cause “‘deal[s] with probabilities[,] . . . not technical[ities,] . . . the

factual and practical considerations of everyday life on which reasonable and prudent

[persons] . . . act.’” Id. (quoting State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008)); see

Brinegar v. United States, 338 U.S. 160, 175 (1949). Moreover, a determination of probable

cause encompasses the accumulation of information known to law enforcement collectively

if a sufficient nexus of communication exists between the arresting officer and a fellow

officer with pertinent knowledge. Echols, 382 S.W.3d at 278 (citation omitted).

-21-

When determining whether the police possessed probable cause, “the courts should

consider the collective knowledge that law enforcement possessed at the time of the arrest,

provided that a sufficient nexus of communication existed between the arresting officer and

any other officer or officers who possessed relevant information.” Bishop, 431 S.W.3d at 36.

Such a nexus exists when the officers are relaying information or when one officer directs

another officer to act. Id. It matters not whether the arresting officers themselves believed

that probable cause existed. Id. (citing Huddleston, 924 S.W.2d 666, 676 (“[An officer’s]

subjective belief that he did not have enough evidence to obtain a warrant is irrelevant to

whether or not probable cause actually existed.”)). When determining the existence of

probable cause, the courts should also consider the entire record, including the proof adduced

at both the suppression hearing and the trial. Id. at 36-37 (citing State v. Henning, 975

S.W.2d 290, 299 (Tenn. 1998)).

In this case, the Defendant never specifically asserted to the trial court that the police

did not have probable cause to arrest him. Accordingly, much of the evidence needed to

determine whether the police had probable cause to arrest the Defendant must be pieced

together from the record. During the motion to suppress hearing, the trial, and during the

motion for new trial hearing, evidence was presented about what police knew at the time of

the Defendant’s arrest. The police knew that the murder in this case occurred on March 10,

1997. Police began an investigation of the homicide, and the Defendant was identified as a

“suspect.” Sergeant A.J. Christian testified during the motion to suppress hearing that the

police had spoken with witnesses “[t]hat actually saw the shooting.” Charles Milem, the

victim’s uncle, gave police officers a statement the night of the shooting. He and other

witnesses at the scene told officers that they had seen a “white box-type Chevy headed” away

from the scene. One of the State’s key witnesses, Lakendra Mull, whose testimony is

summarized above, testified at trial that she found out about the shooting when she returned

home after dropping the victim off the night he was shot. She said that she spoke with police

and gave them a statement the day after this incident. This statement implicated the

Defendant as a suspect in this shooting. It appears from the record that the police had spoken

with Ms. Mull before they arrested the Defendant at some point in the “evening” shortly

before 8:45 p.m. Ms. Mull’s statement provided the police with the Defendant’s motive for

the shooting and his opportunity. Her statement also indicated that the Defendant carried and

possessed a weapon. This statement gave the officers sufficient probable cause for the

Defendant’s arrest.

The Defendant points out that, at one point during Captain Logan’s testimony, he

stated that he did not have “enough to charge” the Defendant at the time of his arrest. Later

during that same testimony, however, Captain Logan was asked whether he was testifying

that the police did not have probable cause to charge the Defendant upon his initial arrest,

and the Captain answered in the negative. Regardless, “[i]t matters not whether the arresting

-22-

officers themselves believed that probable cause existed.” Bishop, 431 S.W.3d at 36. We

conclude that the record evinces that the police did, in fact, have probable cause to arrest the

Defendant after receiving Lakendra Mull’s staement on the evening of March 11, 1997.

“[W]hen a suspect is arrested based on probable cause, the ensuing detention is

typically not illegal until it ‘ripens’ into a Gerstein violation.” McLaughlin, 500 U.S. at 56-

57. (citing Huddleston, 924 S.W.2d at 675). “Obviously, if [an arrestee’s] statement was

given prior to the time the detention ripened into a constitutional violation, it is not the

product of the illegality and should not be suppressed.” Huddleston, 924 S.W.2d at 675. The

question we must now address is whether the record proves that the Defendant was in

custody for more than forty-eight hours before he gave his statement, so as to prove that the

his detention breached a clear and unequivocal rule of law.

At the hearing on the motion to suppress the Defendant’s statement, the evidence

revealed that the Defendant was taken into police custody for questioning without a warrant

on the evening of March 11, 1997. Officers transported the Defendant to the Memphis

Police Department Homicide Office for a formal interview. There, he was advised of his

rights. According to officers, the Defendant refused to sign a waiver of rights form, but

agreed to talk to the officers. At the time, the Defendant denied any involvement in the death

of the victim. At 8:20 p.m. on March 11, 1997, the Defendant was allowed to telephone his

mother. Officers then booked the Defendant into jail. The Defendant’s “arrest ticket”

indicated that the Defendant was arrested at 8:45 p.m. on March 11, 1997.2

The evidence of the times of the Defendant’s arrest and his first statement are

ambiguous at best. The Defendant’s mother indicated the police left her home around 5:45

p.m. on March 11, 1997. The Defendant admitted that he was not in custody at 4:05 p.m. on

March 11, 1997, and also that he agreed to talk with police around 4:05 p.m. on March 13,

1997. An officer who participated in questioning the Defendant testified that on March 13,

1997, the Defendant signed a waiver of rights form at 4:05 p.m. The Defendant then told

officers that he did not wish to make a statement until he spoke to his mother. Both Sergeant

McCommon and the Defendant testified that the Defendant orally confessed to this killing

before he spoke with his mother but after he signed the waiver of rights form. The Defendant

then spoke with his mother at 6:52 p.m. This means that his first confession occurred

between 4:05 p.m. and 6:52 p.m. on March 18, 1997. At 7:20 p.m., the Defendant made

another statement to the officers, in which he confessed to shooting the victim. At 8:20 p.m.,

the Defendant signed the typewritten statement that he made to police. The officers then

2

Although Sergeant A. J. Christian discussed an “arrest ticket” during his testimony at the hearing on the motion

to suppress, we find nothing in the record concerning the admission into evidence of such an item or a copy thereof.

-23-

allowed the Defendant to make another phone call at 8:23 p.m. According to one officer,

during the Defendant’s interview on March 13, the officers fed him a meal.

While not totally clear, it appears that the Defendant made his first confession before

being in custody for more than forty-eight hours. It also appears that part of the delay in the

forty-eight hour time frame was caused by the Defendant’s desire to speak with his mother.

Because of the ambiguity and because some of the delay is attributable to the Defendant, we

conclude that the Defendant’s detention did not breach a clear and unequivocal rule of law.

The Defendant is not entitled to plain error review on this basis.

C. Substantial Justice

Because we have concluded that the Defendant’s detention did not breach a clear and

unequivocal rule of law, we need not go further in our analysis. The Tennessee Supreme

Court, however, recently addressed an issue similar to the one currently before us in State v.

Bishop, 431 S.W.3d 22 (Tenn. 2014). In that case, the Court concluded:

Mr. Bishop was arrested with probable cause. He subsequently confessed

three times to shooting Maurice Taylor. On one of those occasions he was

testifying under oath before a jury. Under these circumstances, it is difficult

to perceive how substantial justice requires the reversal of his conviction for

first-degree felony murder in perpetration of an attempted aggravated robbery.

Id. at *45.

We reach a similar conclusion in this case. There were witnesses to the events before

and during the shooting that showed that the Defendant was jealous of the victim’s

relationship with the Defendant’s girlfriend. The Defendant followed the victim to the

victim’s home on the night of the shooting, believing that the Defendant’s girlfriend was in

the car with the victim and the Defendant’s roommate. Shell casings were found at the scene

of the crime near the body. The Defendant told officers where they could find the gun that

he had used in the murder. Police retrieved the weapon and submitted the 9mm pistol found,

seven live cartridges, one bullet, one bullet core fragment, and three fired cartridge casings

to the Tennessee Bureau of Investigation Crime Laboratory. Testing showed that all three

of the fired cartridge cases had been fired through the submitted pistol. The bullet fragment

had also been fired through the barrel of the pistol. The Defendant confessed to police that

he had committed this murder, and he testified at trial that he had shot the victim but

attempted to explain that he had done so in self-defense. Under these circumstances, it is

-24-

difficult to perceive how substantial justice requires the reversal of his conviction for second

degree murder.

Accordingly, we affirm the judgment of the trial court.

___________________________________

ROBERT W. WEDEMEYER, JUDGE

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