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 September 30, 2015

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. This Court addressed the issue

pursuant to plain error review. State v. Terry Norris, No. W2000-00707-CCA-R3-CD,

2014 WL 6482823 (Tenn. Crim. App., at Jackson, Nov. 18, 2014), perm. app. denied

(Tenn. Apr. 22, 2015). The Defendant filed a Rule 11 application, pursuant to the

Tennessee Rules of Appellate Procedure, to the Tennessee Supreme Court. Our

Supreme Court granted the application and remanded the case to this Court for plenary

review. The State filed a petition to rehear, which the Tennessee Supreme Court denied

on May 15, 2015. After our plenary 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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which ROGER A. PAGE

and ROBERT L. HOLLOWAY, JR., JJ., joined.

John Moran, 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 Abest 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

2

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 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 Akind of staggering because he had been drinking.@ However,

she maintained that the victim Aprobably was more sleepy than full of

alcohol@ because he had not drunk Aall 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

Aburgundy 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 Ahigh 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 Amakes 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 A[o]ver [Newberry].@ However, she

stated that while the victim was at her apartment on the day of the murder,

3

the victim and Newberry were not affectionate and were Asitting 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 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 Athe wrong side of the street.@ Milem next

heard the victim ring the doorbell, and he then heard voices calling the

victim. Milem testified, AOne 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 Alooked

white up under the street lights@ and Asound[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, A[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:

Terry, do you know Keith Milem?

4

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.

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 ABlack@ 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.

5

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

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.

6

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.

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.

7

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

Ablinked@ 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, AI 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 Acalled [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 Afend [the victim] off.@

The Defendant claimed that the victim then Adove 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 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 Aenraged.@ The Defendant also admitted that on the night of the

murder, he was Asuspic[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 Aa fight@ and were not really

speaking. The Defendant recalled that he was Aupset at [his]

girlfriend.@

8

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 Aunder-age daughter and just for safety reasons.@ He

admitted to putting mercury on the tips of bullets, stating that Aif [the

mercury] got into a person . . . it would make the wound more severe.@

However, the Defendant maintained that he altered his bullets solely

Afor 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 Ano voluntary control over his extremities.@

Dr. Smith retrieved a Aplastic property material@ from the

interior of one of the victim=s bullet wounds that he concluded was

Aconsistent with candle-wax.@ Smith explained that Asome 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 Afull-metal jacket@ is a bullet

Athat does not deform or fragment, and therefore . . . does not cause

increase[d] suffering.@ He further explained that A[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.@

Smith also noted a Apre-death@ injury to the victim=s Aring 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

Asomething snagged the skin with sufficient force to peel the skin

down.@ Smith further noted Awhat is known in layman=s terms . . . as

9

powder burns, or a stipple type pattern on the inside of [the victim=s]

left wrist.@ Smith stated that Astipple 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 Aa large area of

bruising[,] . . . some skin scraping and . . . some skin tearing.@ He

explained, AIt=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 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

10

confession obtained in violation of this forty-eight-hour time line is subject to being

excluded under a Afruit 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 Awas 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 Acalled between 4:30 [p.m.] and five looking for [the

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

Abetween five and 5:15 [p.m.].@ The police, who had arrived at the

residence Amaybe three to five minutes@ before the [Defendant], left with

him Aapproximately 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 Aopen-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 Athat 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 A[t]he 48 hour rule@ announced in Huddleston but

acknowledged he Afailed to raise that issue.@ Trial counsel also

acknowledged that he did not object to the definition of Aknowingly@ in the

11

jury instructions. On cross-examination, trial counsel testified that prior to

the [Defendant] giving his statement on March 13, 1997, he was presented

with Aan 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, A[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 A[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 A[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 Awas clearly illegal@ because Afrom 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 Aapparently@ did not because he did not raise it on

appeal. As for the jury instructions defining Aknowingly,@ appellate

counsel stated that Athere=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.

12

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 Aappellate 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 Afruit 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:

13

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.

14

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 ANorris . . . cannot 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 Areasonable postponement@ and Ainevitable@ delays that could result

from Apaperwork 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 Adelayed unreasonably.@ Id. at

56-57, 111 S.Ct. 1661. Delays Afor the purpose of gathering additional

evidence to justify the arrest,@ as well as delays Afor 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 Athe 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 Athe exclusionary rule should apply when a police

15

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 Afruit of the poisonous

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 AHuddleston 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, Athere 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

16

Christian testified that, at the time [the Defendant] was put into the squad

car, he was Ataken into custody@ and confirmed that [the Defendant] was not

free to leave. Officer McCommon testified that he and Officer Christian

went A[t]o pick [the Defendant] up at his home and bring him in for a

statement.@ Under these circumstances, a reasonable person would not feel

free to Adecline 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 Ataken 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 Afruit 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:

A(1) the presence or absence of Miranda warnings; (2) the temporal

proximity of the arrest and the confession; (3) the presence of intervening

17

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 Adelay >for the

purpose of gathering additional evidence to justify the arrest=@ supports a

finding of purposeful police misconduct. Id. at 676.

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: Atransporting

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.

....

18

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.

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 originally addressed the Defendant=s arguments by contending

that the issue should be reviewed for plain error and that the Defendant could not show

that the trial court committed plain error when it admitted the confession. We previously

agreed with the State and addressed the issue for plain error. Norris, 2014 WL 6482823,

at *12-13. The Defendant appealed to the Tennessee Supreme Court, and it remanded

the case to this Court for plenary review and not pursuant to the plain error doctrine.

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

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

admitted that the Defendant Arefused to talk@ when he was arrested and that he held him

for Afurther investigation.@ He points to Captain Logan=s response that he held the

Defendant for further investigation and interrogation because Awe 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 Aright@ to arrest

suspects without a warrant and interrogate them for forty-eight hours before beginning the

process of taking the suspect before a magistrate.

19

The State counters that the Defendant cannot prove that his rights have been

violated because, first, the Sixth Circuit improperly found that the Defendant was

detained for more than forty-eight hours. The State asserts that, AThough 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 A[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: A(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 Abefore 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 Athe 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[a]ny person arrested - except upon a capias pursuant to

an indictment or presentment - shall be taken without unnecessary delay before the

nearest appropriate magistrate.@ The Tennessee Supreme Court has recently stated that

Aa 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>a bona fide emergency or other

extraordinary circumstance= caused the delay.@ Bishop, 431 S.W.3d at 42 (quoting

McLaughlin, 500 U.S. at 56). Nonetheless, even a delay of less than forty-eight hours

may be unreasonable Aif 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). ACourts cannot

ignore the often unavoidable delays in transporting arrested persons from one facility to

20

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 Aany 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, Awhen 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). AObviously, 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. AProbable 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). A>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 A>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).

When determining whether the police possessed probable cause, Athe 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 (A[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.@)).

21

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. When he appealed his case to the Tennessee

Supreme Court, the Defendant argued that this Court did not properly determine that there

existed probable cause at the time of arrest. We again disagree, and we maintain our

conclusion that the police officers had probable cause to arrest the Defendant.

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 Asuspect.@ Before the Defendant=s arrest, officers had spoken with Lakendra Mull,

who informed them that the Defendant was her cousin=s boyfriend and that he was a

jealous individual who had gotten the impression that her cousin had been speaking to the

victim. The Defendant was living with Ms. Mull at the time of the shooting, and, on the

day of the shooting, Ms. Mull had seen him retrieve from the apartment a weapon that he

often carried. On the night of the shooting, Ms. Mull gave the victim a ride home, and

she noticed that the Defendant was following them in his vehicle, a maroon Grand Am,

without his headlights illuminated, despite the late hour. After she dropped off the

victim, she passed the Defendant in his vehicle. He was still proceeding towards the

victim=s home, and he illuminated his car lights. Police officers had Ms. Mull=s

statement at the time of the Defendant=s arrest. They also had the statement of Charles

Milem, the victim=s uncle. He told officers that he saw the victim get out of a car before

the shooting. He heard another car, that looked white, pull up, and heard Atwo@ voices

call to the victim. He then heard three gunshots and saw the victim lying in the street.

We conclude that Ms. Mull=s statement gave officers probable cause for the Defendant=s

arrest. It indicated that the Defendant had the means to commit the crime because he

was in possession of a weapon the day of the shooting. Further, Ms. Mull=s statement

showed that the Defendant had a motive to commit the crime because he was jealous and

angry with the victim because he had been speaking with the Defendant=s girlfriend.

Finally, her statement proved that the Defendant had the opportunity to commit the crime

as he followed Ms. Mull to the victim=s home on the night of the shooting, shortly before

the shooting occurred. This statement gave the officers sufficient probable cause for the

Defendant=s arrest.

22

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

stated that he did not have Aenough 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, A[i]t matters not

whether the arresting 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 statement on the

evening of March 11, 1997.

A[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). AObviously, 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.

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 Aarrest ticket@ indicated that the Defendant was arrested at 8:45 p.m. on

March 11, 1997.1

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

1

Although Sergeant A. J. Christian discussed an Aarrest 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

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 13,

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 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 provided 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 was not illegal.

Accordingly, we affirm the judgment of the trial court.

III. Conclusion

In accordance with the foregoing reasoning and authorities, we affirm the trial

court=s judgment.

_________________________________

__

ROBERT W. WEDEMEYER, JUDGE

24