State of Tennessee v. Marvin Johnson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 1, 2016

STATE OF TENNESSEE v. MARVIN JOHNSON

Appeal from the Criminal Court for Shelby County

No. 14-00135 J. Robert Carter, Jr., Judge

No. W2015-00783-CCA-R3-CD - Filed May 4, 2016

The Defendant, Marvin Johnson, was convicted by a Shelby County Criminal Court jury of

first degree premeditated murder. See T.C.A. § 39-13-202 (2014). The trial court imposed a

life sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to

support his conviction, (2) the trial court erred by denying his motion to suppress evidence,

(3) the trial court erred by admitting an autopsy photograph of the victim, and (4) the trial

court erred by denying his request for transcripts. We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Stephen C. Bush, District Public Defender, and Phyllis Aluko (on appeal) and Jennifer Case

(at trial), Assistant Public Defenders, for the appellant, Marvin Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Paul F. Goodman, Assistant

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

OPINION

This case relates to the March 2013 shooting death of Anthon Joliff. The victim was

shot multiple times while sitting in the driver‟s seat of his girlfriend‟s car after returning

home from shopping.

Motion to Suppress Evidence

At the hearing, Shelby County Sheriff‟s Deputy Michelle Hall testified that on March

14, 2013, she responded to a shots-fired call and that when she arrived at the scene, she found

the victim sitting in the driver‟s seat of a car parked in a residential driveway. She said that

the victim‟s left leg was outside the car and that the victim was turned as though he was

attempting to get out of the car. She said that Inez Shelton, the victim‟s girlfriend, was at the

scene and that Ms. Shelton identified a man she knew as “Pig” as the person who shot the

victim. Ms. Shelton advised that Pig lived in the neighborhood and had left the scene on foot

five minutes before Deputy Hall arrived.

Shelby County Sheriff‟s Sergeant Glen Ray Essary, Jr., testified that he was the lead

detective in the present case and that the Defendant had been apprehended when Sergeant

Essary arrived at the scene. He recalled the Defendant was apprehended at the end of the

street where the shooting occurred. Sergeant Essary asked, “[I]s there a gun somewhere? Is

there a gun out that we can keep some child from getting hurt with?” Sergeant Essary said

the Defendant denied knowing anything about a gun. Sergeant Essary said that before

transporting the Defendant, Sergeant Essary again attempted to learn whether a gun was

located in the neighborhood. The Defendant was removed from the police cruiser, advised of

his Miranda rights, and presented the advice of rights form. Sergeant Essary said that the

Defendant initialed the form reflecting the Defendant had been read his Miranda rights and

that the Defendant wrote on the form he did not wish to answer any questions. Sergeant

Essary said he stopped questioning the Defendant.

Sergeant Essary testified that after the Defendant was transported to the sheriff‟s

office, the Defendant was placed inside an interview room and advised of his Miranda rights

again. Sergeant Essary said that the Defendant waived his rights and that the Defendant only

wanted to know whether “Mr. T” was dead. Sergeant Essary noted that the victim‟s

nicknames were Tony and Mr. T. Sergeant Essary said the Defendant did not admit

involvement in the killing.1

Sergeant Essary testified that after the Defendant‟s arrest, Sergeant Essary requested

recordings of the Defendant‟s telephone calls while in the jail. Sergeant Essary reviewed the

jail telephone calls and said that in one conversation between the Defendant and his mother,

the Defendant admitted shooting the victim but claimed the shooting was self-defense.

Sergeant Essary said that he participated in a search of the Defendant‟s mother‟s home after

she provided Detective Whitaker written consent.

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The Shelby County Sheriff‟s Office recorded the interview. The prosecutor, though, told the trial court and trial counsel

that he did not intend to use the recording during the State‟s case-in-chief and that he only intended to use the recording

for impeachment purposes.

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On cross-examination, Sergeant Essary testified that although he did not go to the

Defendant‟s home located on the same street where the shooting occurred, other deputies

went to the home. He agreed that when he arrived at the scene, the Defendant was being

detained, was wearing handcuffs, and was not free to leave. He said that although he did not

recall when the Defendant was apprehended, he knew it was dark outside and before

midnight. He said the Defendant was placed in custody based upon Ms. Shelton‟s statement

to deputies. Sergeant Essary said that the Defendant had not yet been formally charged with

the homicide when the Defendant arrived at the sheriff‟s office because the charges had to be

approved by the District Attorney‟s Office. He agreed the District Attorney‟s Office was not

contacted until after the Defendant‟s and Ms. Shelton‟s formal police interviews. He said the

charges were approved between 4:00 and 5:00 a.m. on March 15, 2013.

Sergeant Essary testified that the Defendant‟s police interview began on March 15,

2013, at around 1:00 a.m., and that the interview lasted thirty minutes. Relative to Ms.

Shelton‟s interview, Sergeant Essary said she identified the Defendant from a photograph

lineup as the person who shot the victim. Sergeant Essary said the Defendant was placed

under arrest at 4:45 a.m. and was placed in the jail at 6:57 a.m. He said that although the

Defendant‟s arrest ticket reflected the arrest was pursuant to a warrant, the Defendant was

arrested without a warrant. Sergeant Essary later clarified that an arrest warrant was

ultimately obtained.

Shelby County Sheriff‟s Detective Arby Whitaker testified that he responded to the

scene to assist other deputies and that Charlotte Tuggle, a female passerby, told him that a

man ran into a house on a nearby street. Detective Whitaker said that Ms. Tuggle described

the house and that he relayed the information to Patrol Officers Sturgen and Brown at the

scene.

On cross-examination, Detective Whitaker testified that Ms. Tuggle did not report

seeing anyone flee from the scene. He did not recall whether Ms. Tuggle described the

person she saw but said his report would reflect whether she provided a description.

Marquita Johnson, the Defendant‟s sister, testified that in March 2013, she, her two

daughters, her sister, her sister‟s son, her mother, and the Defendant lived in a home down

the street from where the shooting occurred. Ms. Johnson said the Defendant had his own

bedroom. She said that on the night of the shooting, she saw three flashlights outside the

home around 8:00 p.m. She said that three sheriff‟s deputies knocked on the door, that her

mother opened the door, that the deputies were holding their firearms, and that one of the

deputies said, “[L]et us in we know he‟s in there.” When asked if the deputies requested

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permission to enter the home, Ms. Johnson said, “I don‟t recall permission.” She said the

deputies did not request permission to look around the home.

Ms. Johnson testified that she and her family were instructed to sit on the sofa in the

living room. She said that her mother shook and that the three young children cried while the

deputies “looked in each room.” Ms. Johnson said that the deputies returned to the living

room and that one deputy said, “[T]hey were going to get a warrant to search the

[Defendant‟s] bedroom.” She said that the deputies asked her mother for permission to

search the Defendant‟s bedroom and that her mother responded, “[Y]es, sir.” Ms. Johnson

said two deputies left and returned with a search warrant.

On cross-examination, Ms. Johnson testified that the children were ages five, three,

and one. She said that her mother gave the deputies permission to search the Defendant‟s

bedroom after the deputies had entered and “looked in” the Defendant‟s bedroom. Ms.

Johnson agreed her mother consented to a search before the deputies returned with the search

warrant. On redirect examination, Ms. Johnson stated that she never saw a search warrant.

Jacquelyn Perry, records custodian for the general sessions and criminal courts clerk‟s

office, testified that on March 18, 2013, the Defendant was advised of the first degree murder

charge at the video arraignment. On cross-examination, Ms. Perry stated that the Defendant

was arrested on March 15, at 12:24 a.m.

Shelby County Sheriff‟s Detective Robert Brown testified that he responded to the

scene of the shooting, that he learned the victim had died, and that he and two deputies

secured the scene. He said he and the two deputies began searching for the Defendant after

the victim‟s girlfriend described the shooter and provided the direction in which the shooter

fled on foot with the gun. Detective Brown noted that the victim‟s girlfriend identified the

shooter as a man she knew as Pig.

Detective Brown testified that he spoke to several neighbors, one of whom identified

Pig‟s first name as Marvin and the home in which Marvin lived. Detective Brown said that

he and two deputies walked to the home and spoke with the homeowner, who was the

Defendant‟s mother. Detective Brown said the Defendant‟s mother said her son‟s name was

Marvin but was known as Pig. Detective Brown said that although the Defendant‟s mother

denied knowing the Defendant‟s whereabouts, Detective Brown requested her permission to

search the home. He said that the Defendant‟s mother was “extremely cooperative,” that she

identified the Defendant‟s bedroom, and that he looked throughout the home but did not find

the Defendant. Detective Brown said that when he looked inside the Defendant‟s bedroom,

he saw pills in prescription bottles and baggies. He noted some pills strewn about the

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bedroom. He said that the narcotics division was contacted regarding the pills, that he left,

and that the two deputies remained at the home until a search warrant was obtained.

Detective Brown testified that he continued searching for the Defendant with Deputy

Gaither and that Detective Whitaker reported a witness saw a person who matched the

description provided by the victim‟s girlfriend enter a nearby house. Detective Brown said

Detective Whitaker provided a description of the home and the address, but the house

described had a different number. Detective Brown said that he and Deputy Gaither decided

to approach the home matching the witness‟s description. Detective Brown said that

Deputies Sturgen and Shepard arrived at the home and knocked on the side door. Detective

Brown said that the homeowner answered the door and spoke to the deputies and that Deputy

Sturgen began shouting commands for someone to show his or her hands and to get down on

the ground. Detective Brown said that the Defendant was standing just inside the home, that

the Defendant was taken into custody, and that the Defendant was led out of the home.

Detective Brown testified that he spoke to the Defendant after the Defendant was

handcuffed. Detective Brown said he told the Defendant, “Marvin, I‟ll be nice to you as you

are to me. . . . [W]e need some questions answered. And for my safety, I need to know what

all you have on you. So I‟m going to just get your belongings out of your pockets, okay?”

Detective Brown said that the Defendant understood and that he removed the Defendant‟s

belongings, which consisted of a wallet, a Bible, and a couple of miscellaneous items.

Detective Brown said a weapon was not found. Detective Brown said the Defendant stated

that he did not have a gun, that the gun belonged to the victim, and that he shot the victim

after the victim pointed the gun at him. Detective Brown asked the Defendant where the gun

was located, and the Defendant said it was near the victim. Detective Brown said he asked

the Defendant not to speak anymore because the detectives wanted to speak to the Defendant.

Detective Brown said he had not read the Defendant his Miranda rights because he had not

questioned the Defendant.

On cross-examination, Detective Brown testified that he was carrying a rifle and that

the two deputies with him were carrying police-issued semi-automatic pistols. He said that

they used their flashlights when approaching the Defendant‟s mother‟s house to ensure

nobody was hiding in the vicinity. He said they went to the home as a result of the victim‟s

girlfriend‟s statement to police officers. He agreed no witnesses reported seeing the shooter

enter the Defendant‟s home. He said that the Defendant‟s mother was cooperative, told the

deputies to come inside, denied the Defendant was home, and told the deputies to look

around to ensure the Defendant was not there. He agreed he did not obtain written consent to

search the home.

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Detective Brown testified that he requested the people inside the home to sit on the

sofa while he and the other deputies confirmed whether the Defendant was there. He denied

ordering them to sit on the sofa. He said they had a choice and could have told him and the

other deputies that they could not enter the home. Detective Brown denied that he entered

the home with his firearm raised when the Defendant‟s mother opened the door. He said no

firearms were pointed at the Defendant‟s family members. Detective Brown said that he

obtained oral consent to enter the home and that his rifle was pointed downward.

Detective Brown testified that Deputy Christian entered the Defendant‟s bedroom and

that Deputy Hill may have entered the room, as well. Detective Brown said that once he saw

the drug-related items, he and the deputies stepped out of the room and contacted the

narcotics division.

Detective Brown testified that the Defendant was under arrest and not free to leave

after the Defendant was placed in handcuffs. Detective Brown agreed that at the time of the

arrest, no arrest warrant existed and the Defendant had not been charged with a crime.

Relative to the Defendant‟s statement regarding the gun, Detective Brown said that he did

not complete a written report but relayed the Defendant‟s statement to Sergeant Essary.

Shelby County Sheriff‟s Detective Jason Valentine testified that he responded to the

scene and that he assisted the narcotics detectives at the Defendant‟s home. He said that by

the time he arrived, the narcotics detectives had obtained the search warrant and searched the

Defendant‟s home. Detective Valentine recalled that the seized evidence included

ammunition and controlled substances. Relative to the ammunition, Detective Valentine said

the detectives found one .380-caliber live round and thirty-six .32-caliber live rounds. On

cross-examination, Detective Valentine testified that he never entered the Defendant‟s home.

Shelby County Sheriff‟s Detective James Stroud testified that he worked in the

narcotics division and that on the night of the killing he received a telephone call from

Lieutenant Kevin Helms requesting Detective Stroud attempt to obtain a search warrant for

the Defendant‟s home based upon information learned during the homicide investigation.

Detective Stroud said he prepared the warrant, which was granted by a judicial

commissioner. He recalled marijuana, cocaine, acetaminophen, and digital scales were found

during the search.

On cross-examination, Detective Stroud testified that he did not investigate the scene

before obtaining the search warrant and that he relied upon the information provided by

Lieutenant Helms. Detective Stroud said Lieutenant Helms told him that detectives spoke

with witnesses who identified the Defendant fleeing from the scene of the shooting to the

Defendant‟s home down the street. Detective Stroud said Lieutenant Helms also stated that

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detectives conducted a knock-and-talk encounter at the Defendant‟s home and spoke to the

Defendant‟s mother, who consented to a search of the home. Detective Stroud said he did

not think it was necessary for him to investigate further before obtaining the warrant.

Detective Stroud testified that the judicial commissioner who signed the search

warrant did not ask questions before granting the request for the warrant. Detective Stroud

said that he provided Ms. Robinson a copy of the warrant when he arrived at the home. He

said he only participated in the search outside the home.

Shelby County Sheriff‟s Detective Brian Jones testified that he participated in the

search of the Defendant‟s home. He said that inside a bedroom he found one .380-caliber

unfired bullet on a bed under a comforter. He said that the mattress was cut and that inside

the mattress, he found a box of .32-caliber unfired bullets. He agreed the return on the search

warrant did not reference the bullets but said he gave the bullets to Detective Valentine.

On cross-examination, Detective Jones testified that he responded to the home after

the narcotics division was contacted regarding the need for a search warrant. He said

approximately four or five detectives responded to the home. He said all the detectives were

armed but said his .40-caliber pistol was holstered. He did not recall any children or

residents being present during the search.

Trial Proceedings

At the trial, Marvay Mosley, the victim‟s sister, testified that she did not know the

Defendant before the March 14, 2013 shooting. She said she had never heard of a

disagreement or bad feelings between the victim and the Defendant. She said the victim was

age forty-nine at the time of the shooting. She identified a photograph of the victim taken at

the time of the autopsy, which was received as an exhibit.

Inez Shelton, the victim‟s girlfriend, testified that she and the victim lived together at

the home where the shooting occurred. She said that on the night of the shooting, she and the

victim returned home after shopping. She said that the victim was driving her car, that the

victim told her to disengage the home‟s security system, and that the victim said he would

carry the shopping bags inside the home. Ms. Shelton said that as she disengaged the alarm,

she heard gunshots and saw the Defendant, who she knew as Pig, in the driveway. She

thought she heard two, possibly three gunshots. She said the victim was still sitting in the

driver‟s seat of her car. She said that on the night of the shooting, the deputies who

responded to the scene showed her a photograph lineup and that she identified the Defendant

as the person who shot the victim. She agreed she did not know the Defendant‟s legal name

at the time of the shooting and only knew him as Pig.

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Ms. Shelton testified that one week before the shooting, the Defendant came to her

home to talk to the victim. Although she did not know what transpired between the men, she

knew there were “bad feelings” between them. She said that she did not work on the day of

the shooting but that she left home for a period of time. She did not know if the Defendant

came to her home while she was gone.

On cross-examination, Ms. Shelton testified that the road on which she lived did not

have streetlights, although she had a light installed on the pole near her backyard when she

bought the home in 1995. She agreed the road where the Defendant was apprehended also

did not have streetlights. She said that she knew some of her neighbors but that she did not

know Alex Chamness or Brandon Tapley.

Ms. Shelton testified that the Defendant attended high school with her daughter. She

agreed that on one occasion, the Defendant came to her home looking for someone to drive

him somewhere and that the Defendant sometimes visited her home. She said that although

the Defendant talked to the victim when the Defendant visited her home, she and the

Defendant primarily spoke.

Ms. Shelton testified that the victim had lived at her home for about six months at the

time of the shooting and that the victim was not employed while he lived with her. She said

the victim‟s car was not operational, which is why she and the victim used her car. She

agreed she had two guns inside her home, which included a .22-caliber Beretta semi-

automatic pistol. A photograph of Ms. Shelton‟s .22-caliber pistol was received as an

exhibit. She did not recall testifying at the preliminary hearing that she did not own a firearm

and noted she told the deputies on the night of the shooting that she owned a firearm and

where to find it inside her home. She said that at the time of her preliminary hearing

testimony, law enforcement had possession of the firearm.

Ms. Shelton testified that the victim also owned a firearm and that she told the officers

on the night of the shooting that the victim‟s firearm was “long and ugly.” She did not recall

testifying at the preliminary hearing that the victim did not own a firearm. After listening to

the audio recording of the preliminary hearing, she agreed she was asked, “Does [the victim]

have a weapon?” She agreed the victim owned a firearm and said that at the time of the

hearing, her mind was “boggled with what had happened” and that she assumed the question

was related to whether the victim possessed his firearm at the time of the shooting.

Ms. Shelton testified that on the day of the shooting, she went shopping with her

sister, that the victim stayed home without a car, and that Ms. Shelton returned home around

5:00 or 6:00 p.m. She said that she did not recall seeing the Defendant standing in her

driveway when she got out of her car. She said that when she returned home and got out of

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her car, someone was standing at the end of her driveway but that she did not notice the

person‟s identity because she was in a hurry to use the restroom. She conceded the person

might have been the Defendant. After reviewing the recording of her statement to the

deputies on the night of the shooting, she agreed the Defendant had been the person standing

at the end of her driveway. She said the victim was sitting on the sofa when she entered her

home. She identified a photograph of her bedroom and a red shirt lying on the bed. She did

not know whether the shirt belonged to the victim.

Ms. Shelton testified that after she returned home from shopping with her sister, she

entered the home and walked to the restroom. She agreed that she was in the restroom for a

little while and that she did not see the victim when she left the restroom. She said that she

walked onto the patio and that about fifteen to thirty minutes later, she and the victim left the

home to purchase cups. She said that they returned after stopping at a couple of stores. She

said that it was daylight when they left but dark when they returned home. She agreed that

she and the victim were gone about forty-five to fifty minutes and that the motion-sensor

flood light came on when they returned home.

Ms. Shelton testified that she did not hear a voice as she unlocked the door and that

she was inside her home when she heard gunshots. She did not recall telling deputies that

she heard a gunshot while she was unlocking the door. She said that she heard the first

gunshot immediately after she disengaged the security alarm, that she looked outside, and

that she saw the driver‟s side door open and the Defendant standing beside the driver‟s side

door.

Ms. Shelton testified that the 9-1-1 operator told her to attempt to move the victim out

of the car but that she was unable to move him. She said that she consented to a search of her

home but that she went to the sheriff‟s office while the officers searched it. Although she

agreed she told the officers to look in her bedroom for her firearm, she said she did not know

where the victim kept his firearm. She said she last saw the victim‟s firearm on her bedroom

dresser about one week before the shooting.

Shelby County Sheriff‟s Detective C.R. Brown testified consistently with his

suppression hearing testimony relative to his involvement in the present case. On cross-

examination, he agreed the Defendant did not possess a firearm when apprehended.

Shelby County Sheriff‟s Sergeant Jason Valentine testified that when he arrived at the

scene of the shooting, he assisted Sergeant Butterick in taking photographs and collecting

evidence. He identified photographs of two fired cartridge casings found on the rear right

passenger seat, a single fired cartridge casing found on the front driver‟s seat, a single fired

cartridge casing found on the rear passenger-side floorboard, and a spent projectile on the

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rear driver‟s side floorboard. He identified photographs showing bloodstains on the driver‟s

seat. He said he found the victim‟s personal property inside the car.

Sergeant Valentine testified that after the car was taken to the sheriff‟s office, he

continued processing it the day after the shooting and that he found seven live rounds of

Winchester .38-caliber ammunition in a plastic bag. He thought the bullets were found in the

center console.

On cross-examination, Sergeant Valentine testified that the neighborhood was dark

because the area did not have streetlights and that the only light was from the ambient

lighting from the homes and vehicles in the area. He identified a photograph of two plastic

bags sitting on the front passenger-seat floorboard. He said that one bag contained two

bottles of beer.

Shelby County Sheriff‟s Sergeant Essary testified that he interviewed Ms. Shelton at

the sheriff‟s office and that Ms. Shelton stated she heard a gunshot while attempting to

unlock the door. He said the Defendant was age twenty-three at the time of the killing and

that the Defendant was arrested on March 15, 2013, at 4:45 a.m., although the Defendant was

in custody before midnight.

Shelby County Sheriff‟s Detective James Stroud testified similarly with his

suppression hearing testimony regarding his obtaining a search warrant for the Defendant‟s

home.

Shelby County Sheriff‟s Detective Brian Jones testified that he participated in the

search of the Defendant‟s bedroom. Detective Jones provided testimony similar to his

suppression hearing testimony regarding his finding an unfired .380-caliber bullet.

Tennessee Bureau of Investigation (TBI) Special Agent Eric Warren, an expert in

firearms identification, testified that he analyzed a Lorcin Model L .380-caliber pistol, two

magazine clips, several live cartridges, four fired bullets, and four cartridge casings. He

concluded the firearm submitted for analysis did not fire the bullets and cartridge casings

recovered from the scene. Relative to the cartridge casings, Mr. Warren concluded that the

casings were fired from the same firearm and that the casings showed characteristics

consistent with firearm manufacturer Magtech, or CBC. He said the casings displayed CBC,

the manufacturer‟s initials, and +P, reflecting additional gunpowder inside the casing.

Relative to the fired bullets, Mr. Warren concluded that the bullets were also consistent with

Magtech ammunition. He said that generally, a cartridge casing ejected outward and to the

right of a firearm.

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On cross-examination, Mr. Warren testified that cartridge casing ejection depended on

how the firearm was held, the angle at which a firearm was fired, and additional factors. He

said that too many factors existed to conclude where a cartridge casing would travel upon

ejection.

Shelby County Sheriff‟s Homeland Security Officer Juaquatta Harris testified that she

received a request from investigating officers for a compilation of telephone calls the

Defendant made while in confinement. A partial recording of a telephone call placed on

March 15, 2013, was played for the jury. In the recording, a woman asked the Defendant if

he shot someone. The Defendant replied,” [Y]eah, but in . . . self-defense though. He chased

me twice with his (indiscernible) and shot with his gun.”

On cross-examination, Officer Harris testified that the portion of the telephone call

played for the jury was placed by the Defendant. Officer Harris said that the Defendant

identified himself as Pig in the recording and noted that inmates were advised before placing

a telephone call that the conversations were subject to monitoring and recording.

Dr. Erica Curry, an expert is forensic pathology, testified that she performed the

victim‟s autopsy and that the victim suffered four gunshot wounds. The first gunshot wound

reflected that a bullet entered the body at the left-rib area, traveled through the left lung,

struck a major vein of the heart, traveled through the right lung, struck a right rib, and lodged

in the right shoulder. She noted no stippling or soot was found. A second gunshot wound

was found just below the first entry wound on the victim‟s left-rib area. The wound reflected

that the bullet traveled through a rear left rib and exited through the victim‟s back. A third

gunshot wound was found on the victim‟s right shoulder. The wound reflected that the bullet

traveled downward into the right upper arm where the bullet was recovered during the

autopsy. Dr. Curry found soot or stippling on the victim‟s rear right forearm. A fourth

gunshot wound was found on the victim‟s left elbow. The wound reflected that the bullet

traveled through the left humerus, struck the radius, and fractured two bones. Dr. Curry

concluded that the cause of death was multiple gunshot wounds.

On cross-examination, Dr. Curry testified that the victim measured five feet, eight

inches tall and weighed 168 pounds. Dr. Curry agreed her examination showed that the

bullets entering the victim‟s torso traveled upward, that the bullet entering the arm traveled

left to right, and that the bullet entering the elbow traveled back to front.

Shelby County Sheriff‟s Detective Valentine testified similarly with his suppression

hearing testimony regarding the ammunition found during the search of the Defendant‟s

home. He agreed he did not search Ms. Shelton or her belongings and said he did not know

if any deputy searched Ms. Shelton.

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Alexander Chamness testified for the defense that although he grew up one street from

where the shooting occurred, at the time of the shooting, he lived down the street from where

the victim died. Mr. Chamness said he had known Brandon Tapley since he and Mr. Tapley

were children. Mr. Chamness knew the Defendant and said they had been neighbors for

about ten years.

Mr. Chamness testified that on the day of the shooting, he and Mr. Tapley began

working on Mr. Chamness‟s truck outside his home around 6:00 p.m. He said that he saw

the Defendant running down the street toward the Defendant‟s home and being chased by an

older man. Mr. Chamness said the man had his hand on a firearm that was tucked into the

man‟s belt. Mr. Chamness said that although he did not understand the Defendant, the

Defendant was yelling and appeared distressed. Mr. Chamness described the older man as

having “long hair sort of like a Fro” and recalled the man wore a red tank top and pants.

Mr. Chamness testified that as the Defendant and the man ran down the street, Mr.

Chamness and Mr. Tapley told the Defendant to enter Mr. Chamness‟s garage. Mr.

Chamness said that the Defendant entered the garage and that the man stood and kneeled

behind a car parked along the street for about thirty minutes. Mr. Chamness said that Mr.

Tapley spoke to the man. Mr. Chamness said the Defendant looked afraid and upset. Mr.

Chamness said the man returned to his home down the street and recalled the Defendant

walked toward the Defendant‟s home. Mr. Chamness testified that he spoke to deputies

about what occurred. He said that from his driveway, he could see the Defendant‟s home and

the home at which the man was staying.

On cross-examination, Mr. Chamness testified that he did not witness the shooting.

He did not recall telling deputies that he saw the man standing behind the car for about one

minute before returning to the home from which he came. Mr. Chamness agreed that he and

Mr. Tapley had discussed the incident and that Mr. Tapley reported to the deputies that the

man stood behind the car for about thirty minutes.

On redirect examination, Mr. Chamness testified that generally, when he said someone

did something for a minute, he did not mean sixty seconds. He recalled the man kneeling

behind the car for twenty to thirty minutes.

Brandon Tapley testified that although he lived on a nearby street, he spent much of

his childhood on the street where the shooting occurred. He spent time at Donnie Brown‟s

home, which was located at the end of the street where the shooting occurred, and at Mr.

Chamness‟s home. Mr. Tapley had known the Defendant for years from the neighborhood.

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Mr. Tapley testified that at 5:30 or 6:00 p.m. on day of the shooting, he and Mr.

Chamness were outside Mr. Chamness‟s home working on Mr. Chamness‟s truck. Mr.

Tapley said that he saw the Defendant‟s running down the street and being chased by a man,

who was holding a gun in his belt, was yelling, and was threatening to shoot the Defendant.

Mr. Tapley said the firearm looked like a semi-automatic. He said the Defendant called Mr.

Tapley‟s name while running down the street. Mr. Tapley said he and Mr. Chamness told the

Defendant to get inside Mr. Chamness‟s garage and told the man to leave the area. Mr.

Tapley said he told the man that “we didn‟t want none of that around here,” that children

were inside the home, and that the man was going to have to do “this another day.” Mr.

Tapley recalled that his and Mr. Chamness‟s children were inside the home. Mr. Tapley

thought the man wore a tank top and blue pants but could not recall the color of the tank top.

He said the Defendant did not have a gun.

Mr. Tapley testified that the man sat down at the rear of a car parked across the street

for about forty-five minutes and left. Mr. Tapley said that the man walked to a home down

the street and that the man and the woman who lived at the home got in a car and drove

away. Mr. Tapley recalled it was daylight but beginning to get dark when the car drove

away. Mr. Tapley said the Defendant was terrified.

Mr. Tapley testified that he did not call the police because he did not think it was

necessary. He said that “things” had happened in the neighborhood previously and that he

thought the Defendant and the man would “settle everything” the next day. Mr. Tapley did

not think anything would happen after the man left and said the man never displayed a gun to

suggest he would return.

On cross-examination, Mr. Tapley testified that he initially told deputies that the

Defendant stayed inside the garage between ten and fifteen minutes, not forty-five minutes.

He said, though, the man may have remained behind the car for less than forty-five minutes.

Mr. Tapley agreed the shooting occurred after sunset and said he did not know how much

time passed between the Defendant‟s leaving the garage and the shooting. On redirect

examination, Mr. Tapley testified that although he did not hear gunshots, he heard a woman

scream.

Ms. Shelton‟s statement to deputies was audio recorded. Two segments of the

interview were played for the jury. In the first segment, Ms. Shelton said that she and the

victim returned from shopping, that the victim drove the car into the driveway, that the victim

told her to unlock the door and he would carry the shopping bags inside the home, that she

got out of the car and walked to the door, and that she heard a voice and gunshots. Ms.

Shelton stated that she saw Pig standing at the driver‟s side door and shooting a gun. Ms.

Shelton said that she screamed and attempted to get inside the home and that the Defendant

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ran away. In the second segment, Ms. Shelton stated that she could not hear what the

Defendant said because he was soft spoken.

Upon this evidence, the Defendant was convicted of first degree premeditated murder

and sentenced to life imprisonment. This appeal followed.

I Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to support his conviction. He

argues the State failed to establish that he was sufficiently free from excitement and passion

to be capable of premeditation and that he did not act in self-defense. The State responds

that the evidence sufficiently established that the Defendant intentionally killed the victim

with premeditation and that the Defendant did not act in self-defense. We agree with the

State.

In determining the sufficiency of the evidence, the standard of review is “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521

(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all

reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate

courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility

of witnesses [and] the weight and value to be given the evidence . . . are resolved by the trier

of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a

combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.

Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review „is the same whether the

conviction is based upon direct or circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d

370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

Relevant to this case, first degree murder is the unlawful, intentional, and

premeditated killing of another. T.C.A. §§ 39-13-201 (2014), 39-13-202(a)(1) (2014). In the

context of first degree murder, intent is shown if the defendant has the conscious objective or

desire to cause the victim‟s death. State v. Page, 81 S.W.3d 781, 790-91 (Tenn. Crim. App.

2002); T.C.A. § 39-11-106(a)(18) (2010) (amended 2011, 2014) (defining intentional as the

“conscious objective or desire to engage in the conduct or cause the result”). “It is not

necessary that the purpose to kill preexist in the mind of the accused for any definite period

of time.” T.C.A. § 39-13-202(d) (2014). “The element of premeditation is a question for the

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jury which may be established by proof of the circumstances surrounding the killing.” State

v. Young, 196 S.W.3d 85, 108 (Tenn. 2006). As a result, the jury “may infer premeditation

from the manner and circumstances of the killing.” State v. Jackson, 173 S.W.3d 401, 408

(Tenn. 2005); see State v. Vaughn, 279 S.W.3d 584, 595 (Tenn. Crim. App. 2008). Our

supreme court has provided a list of factors which “tend to support the existence” of

premeditation and deliberation. See Bland, 958 S.W.2d at 660. The list includes the use of a

deadly weapon upon an unarmed victim, the particular cruelty of the killing, declarations by

the defendant of an intent to kill, evidence of procurement of a weapon, preparations before

the killing for concealment of the crime, and calmness immediately after the killing. Id.

(citing State v. Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992); State v. West, 844 S.W.2d 144,

148 (Tenn. 1997)).

The record reflects that around 5:30 or 6:00 p.m. on the day of the shooting, Mr.

Chamness and Mr. Tapley saw the Defendant running down the street and being chased by

the victim, who was carrying a firearm in his belt. Mr. Tapley and Mr. Chamness allowed

the Defendant to enter Mr. Chamness‟s garage to end the pursuit. The victim, however,

remained in the area between thirty and forty-five minutes. After the victim returned to Ms.

Shelton‟s home, the Defendant left Ms. Chamness‟s garage and walked toward the

Defendant‟s home. Ms. Shelton arrived home sometime after the victim returned. Ms.

Shelton stated that when she arrived home between 5:00 and 6:00 p.m., she walked to the

bathroom, stayed inside the bathroom for “a little while,” and walked onto the outside patio.

She said that she and the victim left the home about fifteen to thirty minutes later. She

recalled it was daylight outside when they left and said they stopped at a couple of stores

before returning home. She said that they were gone about forty-five to fifty minutes and

that it was dark outside when they returned. Ms. Shelton recalled that she got out of the car

to disengage the security alarm and that the victim stayed behind to gather the shopping bags.

Before the victim could get out of the car, the Defendant shot the victim four times. Ms.

Shelton told deputies on the night of the shooting that she heard the Defendant‟s voice and

gunshots before she unlocked the door.

We conclude that this evidence is sufficient to support the Defendant‟s conviction for

first degree premeditated murder. The evidence reflects that once the Defendant took refuge

in Mr. Chamness‟s garage, the victim stayed in the area approximately thirty to forty-five

minutes before returning home. Ms. Shelton returned home near the time the victim returned

after chasing the Defendant. Ms. Shelton and the victim were at the home fifteen to thirty

minutes before leaving and were gone forty-five to fifty minutes. Upon arriving home, the

Defendant appeared without warning and before Ms. Shelton could unlock the door and

disengage the security alarm. We note that Mr. Tapley‟s testimony reflects the Defendant did

not possess a firearm when the Defendant took refuge in Mr. Chamness‟s garage but that the

Defendant obtained a firearm before the shooting and disposed of it afterward. The victim

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was unarmed at the time of the shooting. Furthermore, Ms. Shelton stated during her formal

police interview that she could not hear what the Defendant said at the time of the shooting

because he was soft spoken. A jury could have reasonably determined from this evidence

that sufficient time had passed between the initial altercation and the shooting in order for the

Defendant to have acted after reflection and judgment and that the Defendant acted with

premeditation, not with excitement and passion.

Likewise, the evidence does not support a finding that the Defendant killed the victim

in self-defense. See T.C.A. § 39-11-611(b)(2)(A)-(C) (2014). The evidence does not reflect

that a reasonable person could have believed the victim‟s attempting to gather shopping bags

and exit Mr. Shelton‟s car posed an imminent danger of death or serious bodily injury. After

the initial altercation had ended, the victim returned to Ms. Shelton‟s home, and the

Defendant left Mr. Chamness‟s garage walking in the opposite direction as the victim. The

victim was unarmed at the time of the shooting, and no evidence reflects that the victim knew

the Defendant would suddenly appear in the driveway. We note that the Defendant had no

legal right to be on Ms. Shelton‟s property at the time of the shooting and that the Defendant

lived on the opposite end of the road from where the shooting occurred. As a result, the jury

could have reasonably determined that the Defendant was waiting in the dark for the victim

and Ms. Shelton to return because the Defendant appeared quickly without warning and shot

the victim before Ms. Shelton could unlock the door. Likewise, the Defendant ran from the

scene, disposed of the firearm used to kill the victim, and did not return home. The jury

properly rejected the Defendant‟s claim of self-defense. The Defendant is not entitled to

relief on this basis.

II Suppression

The Defendant contends that the trial court erred by denying his motion to suppress

evidence seized at his home and his statement during a jail telephone call. He argues that the

initial warrantless search of his bedroom was conducted without valid consent or

alternatively, that Ms. Robinson exceeded her authority when she consented to a search of the

Defendant‟s bedroom. He also argues that the unlawful initial warrantless search tainted the

constitutionality of the search warrant, that the search warrant was defective because it was

based upon “deliberately or recklessly untruthful allegations,” and that the search warrant

was defective because the return failed to mention the seized bullet. Lastly, the Defendant

argues that the portion of a recorded jail telephone call played for the jury should have been

suppressed because the Defendant was being unconstitutionally detained, because he was not

permitted to be present during the judicial commissioner‟s probable cause determination, and

because Tennessee Rule of Criminal Procedure 5(a) was violated. The State responds that

the trial court properly denied the motion to suppress.

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A trial court‟s findings of fact on a motion to suppress are conclusive on appeal unless

the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);

State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the

“credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts

in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928

S.W.2d at 23. The prevailing party is entitled to the “strongest legitimate view of the

evidence and all reasonable and legitimate inferences that may be drawn from that evidence.”

State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); see State v. Hicks, 55 S.W.3d 515, 521

(Tenn. 2001). A trial court‟s application of the law to its factual findings is a question of law

and is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). In

reviewing a trial court‟s ruling on a motion to suppress, this court may consider the trial

evidence as well as the evidence presented at the suppression hearing. See State v. Henning,

975 S.W.2d 290, 297-99 (Tenn. 1998); see also State v. Williamson, 368 S.W.3d 468, 473

(Tenn. 2012).

A. Warrantless Search and Search Pursuant to a Warrant

Relative to the Defendant‟s argument that the initial warrantless search was unlawful

and tainted the constitutionality of the search warrant, the trial court found that witnesses told

the deputies that a man known as Pig was responsible for the shooting and that Pig fled from

the scene on foot. The court found that witnesses identified Pig as Marvin and told the

deputies where Marvin lived. The court found that Detective Brown knocked on the door of

the home, and the homeowner, Ms. Robinson, confirmed that her son Marvin, who was

known as Pig, lived there but was not home. The court found that Ms. Robinson allowed the

deputies to “to have a look in order to confirm” the Defendant was not home and that

Detective Brown described Ms. Robinson as “cooperative and agreeable to the brief search.”

The court found that the deputies asked for and received limited consent to look inside the

home for the Defendant and that it was during the cursory search the deputies observed

unlawful contraband. The court found that Detective Brown stopped the search, left two

deputies to protect the scene, and contacted the narcotics division for assistance with

obtaining a search warrant.

The trial court found that narcotics deputies obtained and executed a search warrant at

the Defendant‟s home. The court found that inside the bedroom identified as the Defendant‟s,

deputies seized suspected cocaine, marijuana, prescription medication, digital scales, one

unfired .380-caliber bullet, and a box of .32-caliber bullets. The court found that the search

warrant was obtained by Detective Stroud, who obtained the warrant based upon information

provided to him by other deputies at the scene. The court noted that Detective Stroud did not

drive to the scene to verify the information presented to him.

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The trial court noted the Defendant‟s argument that the phrase in the warrant affidavit

“fleeing from the scene of the homicide to his residence” was false because the Defendant

was not inside the home when the deputies arrived. The court found, though, that the

Defendant could have gone to the residence and left quickly. The court refused to find that

the statement was “false or recklessly made” and found that the information contained in the

affidavit was sufficient for the magistrate to conclude that evidence of controlled substance

violations were occurring at the time of the issuance of the warrant. The court found that the

search warrant was valid and that the single .380-caliber bullet was lawfully discovered and

seized pursuant to the warrant.

Our federal and Tennessee constitutions prohibit unreasonable searches and seizures

and provide generally that warrantless searches and seizures are presumed unreasonable and

that evidence recovered as a result of warrantless searches and seizures is subject to

suppression. See U.S. Const. amend IV; Tenn. Const. art. I, § 7; see also Yeargan, 958

S.W.2d at 629. As a general principle, the police cannot conduct a search without obtaining

a warrant. R.D.S. v. State, 245 S.W.3d 356, 365 (Tenn. 2008) (citing Payton v. New York,

445 U.S. 573, 586 (1980)). However, our courts have identified narrow exceptions to the

warrant requirement. State v. Bartram, 925 S.W.2d 227, 229-30 (Tenn. 1996) (citing

Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)). The State bears the burden of

showing that the “search was conducted pursuant to one of the exceptions to the warrant

requirement.” State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008); see State v. Binette, 33

S.W.3d 215, 218 (Tenn. 2000).

One such exception to the warrant requirement exists for a search conducted pursuant

to valid consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Consent for a

warrantless search may be given by the defendant or by “a third party who possessed

common authority over or other sufficient relationship to the premises or effects sought to be

inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974); see State v. Talley, 307

S.W.3d 723, 734 (Tenn. 2010). Common authority is shown by

mutual use of the property by persons generally having joint access or control

for most purposes, so that it is reasonable to recognize that any of the co-

inhabitants has the right to permit the inspection in his own right and that the

others have assumed the risk that one of their number might permit the

common area to be searched.

Matlock, 415 U.S. at 172 n.7; see Bartram, 925 S.W.2d at 231.

Although the Defendant argues that Ms. Robinson‟s consent to search the home

occurred after the deputies entered the home and briefly searched for the Defendant, the

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evidence reflects otherwise. Detective Brown‟s credited testimony reflects that witnesses

reported Pig‟s first name was Marvin and identified Marvin‟s home and that Detective

Brown and two deputies approached the home, knocked on the door, and spoke to Ms.

Robinson, who was the homeowner and the Defendant‟s mother. Ms. Robinson confirmed

that the Defendant lived at the home but told Detective Brown that the Defendant was not

home. Detective Brown described Ms. Robinson as cooperative and agreeable. Detective

Brown requested Ms. Robinson‟s permission to perform a cursory search of the home to

confirm whether the Defendant was there, and Ms. Robinson consented to a brief search. We

note that circumstances of the deputies‟ encounter with Ms. Robinson do not reflect that she

was incapable of freely and voluntarily consenting to the search. Although the officers were

armed, Detective Brown testified that no firearms were pointed at any of the home‟s

occupants, that the encounter was not hostile, and that he explained the deputies were only

looking for the Defendant. It was during the cursory search for the Defendant that the

deputies saw contraband in plain view, which led to the deputies‟ contacting the narcotics

division for the purpose of obtaining a search warrant. The record does not preponderate

against the trial court‟s findings that Detective Brown requested and received Ms.

Robinson‟s consent to briefly search the home for the Defendant.

Relative to Ms. Robinson‟s authority to consent to a search of the Defendant‟s

bedroom, the record reflects that the Defendant lived inside his mother‟s home. No evidence

showed that the Defendant and Ms. Robinson executed a rental agreement or contract.

Likewise, although Ms. Johnson testified the Defendant had his own bedroom, no evidence

reflects that Ms. Robinson or any other occupant was excluded from the bedroom. To the

contrary, the record shows that the Defendant‟s use of the bedroom was the result of a

familial relationship and that all occupants had access to all areas of the home. See State v.

Woods, 806 S.W.2d 205, 209 (Tenn. 1990). “A valid consent may be given by third persons

who have some type of joint authority over the area to be searched.” Id. We conclude that

Ms. Robinson retained joint access and control of the bedroom in which the Defendant

resided and that the Defendant‟s “occupancy of the bedroom was not so exclusive as to

deprive” Ms. Robinson of authority to consent to a cursory search of the home.

Therefore, we conclude that the deputies conducted a valid warrantless search of the

home pursuant to valid consent by Ms. Robinson. As a result, the search warrant was not

tainted because of the previous warrantless entry. The Defendant is not entitled to relief on

this basis.

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B. Affidavit and Return on the Search Warrant

Relative to the Defendant‟s argument that the seized evidence should have been

suppressed because the affidavit contained false information, the record reflects that the

affidavit stated the following:

On March 14, 2013, detectives responded to a homicide at [the victim‟s

girlfriend‟s address], Memphis, TN 38128. Detectives discovered a victim of

the homicide to be a black male in his mid-forty‟s. Detectives spoke with

witnesses who identified Marvin Johnson fleeing from the scene of the

homicide to his residence[, which is located down the street from the scene of

the shooting]. Detectives conducted a knock and talk at [the Defendant‟s

address] and encountered Yolanda Robinson. Yolanda Robinson gave

detectives consent to search the residence. Detectives observed, in plain view,

what appeared to be marijuana, cocaine, and prescription pills.

The trial court found that the phrase “fleeing from the scene of the homicide to his

residence” contained in the affidavit was not false or recklessly made. The court noted that

the Defendant could have gone to the residence and left quickly. The court found that the

information contained in the affidavit was sufficient for the magistrate to conclude that

narcotics violations were occurring at the time of the issuance of the warrant. The court

concluded that the search warrant was valid and the evidence properly seized.

In Tennessee, a search warrant must be issued on a finding of probable cause and

supported by an affidavit that “sets forth facts tending to establish” probable cause. T.C.A.

§§ 40-6-103, -104; see State v. Williams, 193 S.W.3d 502, 506 (Tenn. 2006). “Probable

cause generally requires reasonable grounds for suspicion, supported by circumstances

indicative of an illegal act.” Williams, 193 S.W.3d at 506 (citing State v. Stevens, 989 S.W.2d

290, 293 (Tenn. 1999)). The issuing magistrate should use common sense when determining

whether the affidavit supports a finding of probable cause. State v. Carter, 160 S.W.3d 526,

533 (Tenn. 2005). We review an issuing magistrate‟s probable cause determination with

great deference. State v. Melson, 638 S.W.2d 342, 357 (Tenn. 1982) (citing United States v.

Melvin, 596 F.2d 492, 498 (1st Cir. 1979)).

The United States Supreme Court has concluded that evidence seized pursuant to a

search warrant is subject to suppression when the supporting affidavit includes deliberate or

recklessly false statements by the affiant that are material to the establishment of probable

cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Our Tennessee Supreme Court

has concluded that two circumstances exist that “authorize the impeachment of an affidavit

sufficient on its face, (1) a false statement made with intent to deceive the [c]ourt . . . and (2)

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a false statement, essential to the establishment of probable cause, recklessly made.” State v.

Little, 560 S.W.2d 403, 407 (Tenn. 1978). “Recklessness may be established by showing that

a statement was false when made and that affiant did not have reasonable grounds for

believing it, at that time.” Id. “[F]raudulent misrepresentation of a material fact will

invalidate a search warrant.” Id. at 406. However, “[a]llegations of negligence or innocent

mistakes are insufficient to invalidate the search warrant.” State v. Yeomans, 10 S.W.3d 293,

297 (Tenn. Crim. App. 1999); see Franks, 438 U.S. at 171. In order to invalidate a search

warrant, the false statement must be “the only basis for probable cause set out in the

affidavit.” State v. Tidmore, 604 S.W.2d 879, 882 (Tenn. Crim. App. 1980). If, however, the

false statement is not the only basis for probable cause and the remaining content in the

affidavit fails to establish probable cause, the false statement would be fatal to the warrant.

Id.; see State v. Norris, 47 S.W.3d 457, 469 n.4 (Tenn. Crim. App. 2000).

The alleged false statement in the affidavit includes, “Detective spoke with witnesses

who identified Marvin Johnson fleeing from the scene of the homicide to his residence.”

Although the trial court found that the statement was not false, the State concedes in its brief

that no witness reported seeing the Defendant flee the scene of the shooting to his residence

down the street. The State argues that “in the area of his residence” or “near his residence”

would have been more accurate. The statement was inaccurate and, at a minimum, reckless

in this regard. In any event, the record reflects that the statement was not a basis for

establishing probable cause. Ms. Shelton identified the shooter as a man she knew as Pig and

stated she saw Pig run from her driveway where the shooting occurred down the street. Ms.

Shelton knew Pig lived in the neighborhood. Witnesses in the area identified Pig as the

Defendant and informed the deputies that the Defendant lived in a house down the street

from Ms. Shelton‟s home. Although the statement in the affidavit that the Defendant fled to

his residence was incorrect, no evidence shows that the statement was intended to deceive the

judicial magistrate or that the statement was a basis for probable cause. The statement,

rather, was to explain the reason deputies approached the Defendant‟s home for a knock-and-

talk encounter. The initial warrantless search of the home was conducted pursuant to Ms.

Robinson‟s valid consent, and it was during the limited cursory search that the contraband

was seen in plain view. The primary focus of the warrant was the contraband, and the

probable cause to support the warrant was based upon the deputies‟ observing contraband in

plain view, not whether the Defendant was seen running to his home after the shooting. The

warrant states that the search warrant was for “cocaine, marijuana, prescription pills,

firearms, ammunition, drug paraphernalia, forensic evidence including DNA, drug records,

and drug proceeds.” We note that the homicide detectives did not obtain or execute the

search warrant and that narcotics detectives were called to the Defendant‟s home to address

the contraband. Therefore, the warrant was valid and the evidence properly seized. The

Defendant is not entitled to relief on this basis.

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The Defendant also argues that the warrant was invalid because the return was

incomplete in that it did not identify the bullets seized during the search. The trial court

found that at the time of the motion to suppress, the return on the warrant had not been

“made” as required by Tennessee Rule of Criminal Procedure 41(f) because it failed to

mention the .380-caliber bullet seized during the search. The court found, though, that the

State had demonstrated the return had been completed by a supplemental pleading filed after

the conclusion of the motion hearing.

This court has previously concluded that an “improper return cannot negate the

validity of an otherwise legal search.” State v. Robinson, 622 S.W.2d 62, 75 (Tenn. Crim.

App. 1980); see Squires v. State, 525 S.W.2d 686, 692 (Tenn. Crim. App. 1975) (stating “the

return of an officer upon a search warrant does not affect the validity of the warrant and the

officer‟s execution thereof, and irregularities in regard to the return do not render evidence

secured thereunder inadmissible”). In State v. Baron, 659 S.W.2d 811, 815 (Tenn. Crim.

App. 1983), this court concluded that the failure to list the seized property on the return of a

search warrant was an irregularity that did not “in any way affect the admissibility of the

evidence seized as a result of an otherwise valid search.” (citing State v. Green, 613 S.W.2d

229 (Tenn. Crim. App. 1980); Bishop v. State, 582 S.W.2d 86 (Tenn. Crim. App. 1979)). In

any event, the trial court properly found that the State corrected any irregularity in the return

after the suppression hearing. Therefore, the Defendant is not entitled to relief on this basis.

C. Jail Telephone Call

The Defendant argues that because he was unconstitutionally detained without being

afforded an appearance before a neutral magistrate, the portion of the recorded jail telephone

call played during the trial should have been suppressed. The Defendant notes his detention

from the time he was taken into custody on March 14, at 9:00 p.m., until the formal charges

were presented to the judicial commissioner on March 15, at 7:00 a.m., and the failure to

allow the Defendant to appear before the judicial commissioner. The Defendant notes he did

not appear before a magistrate until March 18. The Defendant concedes in his brief that a

judicial commissioner made a probable cause determination within forty-eight hours of his

arrest, but he argues his constitutional rights pursuant to Gerstein v. Pugh, 420 U.S. 103

(1975), were violated because the probable cause determination was delayed in an effort to

gather additional evidence and because he did not appear before the commissioner.

Alternatively, the Defendant argues that his detention violated Tennessee Rule of Criminal

Procedure 5(a) requiring the State to take a defendant without unnecessary delay before a

judicial magistrate.

Relative to the Defendant‟s detention, the trial court found that the Defendant was

taken into custody on March 14, 2013, at 9:00 p.m. The trial court found that after the

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Defendant was transported to the sheriff‟s office, the Defendant signed a waiver of rights

form and denied any involvement in the shooting. The court found that the investigating

deputies reviewed the various witness statements, interviewed Ms. Shelton, and requested

she attempt to identify the shooter from a photograph lineup. The court noted Ms. Shelton

identified the Defendant from the lineup and found that the deputies consulted the District

Attorney‟s Office about the proper charges after reviewing all the evidence. The court found

that the investigation was concluded within approximately eight hours. The court found that

the decision to charge the Defendant was made on March 15, 2013, at 4:45 a.m. and that he

was taken for booking and processing at 6:57 a.m. The court noted March 15 was a Friday.

The court found that the arrest warrant was reviewed by a neutral and detached magistrate, a

judicial commissioner, who signed the arrest warrant. The trial court found that during the

weekend, the Defendant placed telephone calls from the jail, which were recorded pursuant

to jail policy, and that during at least one conversation, the Defendant “mentioned that he

shot the dude, but it was in self-defense.” The court found that the Defendant‟s arraignment

was held on Monday morning.

The trial court found that no unnecessary delay existed between the Defendant‟s arrest

and his appearing at the arraignment. The court found that any delay was incidental and

could not be construed as an attempt to overcome the Defendant‟s “will to resist” or to

continue to gather evidence. The court noted all the evidence was obtained before the formal

arrest, other than the telephone call. The court found that the relevant telephone conversation

was not the product of any questioning or interrogation by a law enforcement officer and that

warnings were provided stating all telephone calls were monitored and recorded. The court

found that the initial detention was proper and that no unnecessary delay occurred in bringing

the Defendant before a magistrate.

When a defendant is subjected to a warrantless arrest, law enforcement is required to

take the defendant before a magistrate to seek a “timely judicial determination of probable

cause.” Gerstein, 420 U.S. at 125; see State v. Huddleston, 924 S.W.2d 666, 671-72 (Tenn.

1996). “While a delay of less than forty-eight hours is presumptively reasonable, a delay

beyond forty-eight hours requires the State to prove that „a bona fide emergency or other

extraordinary circumstance‟ caused the delay.” State v. Bishop, 431 S.W.3d 22, 42 (Tenn.

2014) (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991)). However, “a

delay shorter than forty-eight hours may still be considered unreasonable . . . if the delay is

„for the purpose of gathering additional evidence to justify the arrest‟ or . . . „motivated by ill

will against the arrested individual, or delay for delay‟s sake.‟” Bishop, 431 S.W.3d at 42

(quoting McLaughlin, 500 U.S. at 56). When a delay is determined unreasonable and

unconstitutional, the exclusionary rule applies to “evidence obtained by virtue of a suspect‟s

unlawful detention . . . unless the arrested person‟s statement was „sufficiently an act of free

will to purge the primary taint‟ of the illegal detention.” Bishop, 431 S.W.3d at 42 (quoting

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Huddleston, 924 S.W.2d at 674-75). Furthermore, when a defendant‟s arrest is based upon

probable cause, the “detention is typically not illegal until it „ripens‟ into a Gerstein

violation.” Bishop, 431 S.W.3d at 42 (quoting Huddleston, 924 S.W.2d at 675). As a result,

if the 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.

Relative to the delay between the Defendant‟s detention at 9:00 p.m. and the judicial

commissioner‟s signing the arrest warrant the next day at 6:57 a.m., the record reflects that

sufficient probable cause existed to believe the Defendant was involved in the shooting at the

time the Defendant was taken into custody. Although the record reflects that law

enforcement continued investigating the shooting after the Defendant was brought to the

sheriff‟s office, no evidence suggests the investigation continued in an effort to establish

probable cause to justify the Defendant‟s warrantless arrest. At the scene, Ms. Shelton

identified a man she knew as Pig as the shooter, and other witnesses identified Pig as the

Defendant and the home in which the Defendant lived. As a result, at the time of the

Defendant‟s arrest, sufficient information existed to “„warrant a [prudent] person in believing

that the [defendant] had committed or was committing an offense.‟” State v. Bridges, 963

S.W.2d 487, 491 (Tenn. 1997) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). Because the

Defendant was arrested based upon probable cause, the delay between his arrest and the

judicial commissioner‟s probable cause determination was not unlawful. The evidence

shows that the delay was to conduct formal interviews of the Defendant and Ms. Shelton,

provide Ms. Shelton the opportunity to identify the person she knew as Pig in a photograph

lineup, and to consult the District Attorney‟s Office about the proper criminal charges.

Likewise, the Defendant concedes the judicial determination occurred within the

presumptively reasonable forty-eight-hour period. The trial court properly denied the motion

to suppress on this basis, and we conclude that the Defendant is not entitled to relief.

Relative to the Defendant‟s argument that Gerstein was violated because he did not

appear before the judicial commissioner when the probable cause determination was made,

the Supreme Court has stated that “the full panoply of adversary safeguards,” including

counsel, compulsory process, confrontation, and cross-examination “are not essential for the

probable cause determination required by the Fourth Amendment.” Gerstein, 420 U.S. at

120. The Court noted that the only issue to determine is whether “there is probable cause for

detaining the arrested person pending further proceedings,” which “can be determined

reliably without an adversary hearing.” Id. The Court noted that procedures might vary

between States and concluded that the only requirement to satisfy Fourth Amendment

concerns was “a fair and reliable determination of probable cause as a condition for any

significant pretrial restraint of liberty.” Id. at 124-25. The Court also concluded that a

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probable cause determination in this context is not a critical stage in a prosecution “[b]ecause

of its limited function and nonadversary character.” Id. at 122.

Although the Defendant argues that his lack of appearance at the probable cause

determination did not satisfy Gerstein, he cites to no legal authority supporting his argument.

Our appellate courts have not addressed this issue, but other jurisdictions have concluded that

the probable cause determination pursuant to Gerstein can be satisfied without an adversary

hearing and without the defendant‟s presence. See State v. Koch, 499 N.W.2d 152, 159-60

(Wis. 1993) (concluding that “[t]he arrested person has no right to a physical appearance

before a judicial officer for the probable cause determination”). In King v. Jones, 824 F.2d

324, 327 (4th Cir. 1987), the court concluded that the defendant “had no right to a face-to-

face appearance before the magistrate during the probable cause determination.” The King

court explained,

The post-arrest Gerstein v. Pugh hearing is required to fulfill the same function

for suspects arrested without warrants as the pre-arrest probable cause hearing

fulfills for suspects arrested with warrants. One who has had an arrest warrant

issued before this arrest has had no opportunity to appear physically before the

issuing magistrate during the probable cause determination. There is likewise

no reason to require such an appearance at the post-arrest probable cause

determination.

Id.; see Garcia v. City of Chicago, 24 F.3d 966, 969-70 (7th Cir. 1994) (concluding that a

probable cause determination does not require the presence of the defendant); In re Walters,

543 P.2d 607, 617-18 (Cal. 1975) (concluding that a defendant “is not entitled to challenge

statements by confronting and cross-examining the declarer [and . . .] has no right to confront

and cross-examine the witnesses who testify on the issue of probable cause to detain”

pursuant to Gerstein). We agree with the reasoning in these cases and conclude that the

Defendant‟s presence at the probable cause determination was not required to satisfy

Gerstein. As a result, we conclude that Gerstein was satisfied and that the Defendant is not

entitled to relief on this basis.

Relative to the Defendant‟s argument that the partial recording of his jail telephone

call should have been suppressed because Tennessee Rule of Criminal Procedure 5(a)(1)(B)

was violated, the Rule states, “Any person arrested – except upon a capias pursuant to an

indictment or presentment – shall be taken without unnecessary delay before the nearest

appropriate magistrate[.]” The Rule does not address probable cause determinations pursuant

to Gerstein but, rather, relates to the initial appearance during which a defendant is informed

of the criminal charges and his constitutional rights. In any event, the State concedes in its

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brief that a “technical violation” of the Rule occurred because although the Defendant was

arrested on March 14, his initial appearance did not occur until March 18.

Our supreme court has concluded relative to Rule 5(a) that “if an individual is not

brought before a magistrate within 72 hours, there has been „unnecessary delay.‟” State v.

Carter, 16 S.W.3d 762, 768 (Tenn. 2001) (quoting Huddleston, 924 S.W.2d at 670).

However, our courts have concluded that “a delay of seventy-two hours, without more, [does]

not render a confession taken during that time inadmissible.” State v. Readus, 764 S.W.2d

770, 773 (Tenn. Crim. App. 1988). Our supreme court has refused to adopt a per se rule of

exclusion relative to a statement made by a defendant during a period of unnecessary delay.

Huddleston, 924 S.W.2d at 670. To the contrary, our supreme court has concluded that

suppression of a confession given during a period of unnecessary delay is required “only if an

examination of the totality of the circumstances reveals that the statement was not voluntarily

given. Id.; see Readus, 764 S.W.2d at 774.

The record reflects that the Defendant was taken into custody on March 14, at 9:00

p.m. and that the seventy-two hours would have elapsed on March 17, at 9:00 p.m. The

Defendant‟s initial appearance occurred on March 18. Officer Juaquatta Harris‟s trial

testimony showed that the relevant jail telephone call was placed on March 15, which was

well within the seventy-two-hour period. The record reflects that the conversation in which

the Defendant admitted involvement in the shooting was with his mother and was not the

result of the deputies‟ questioning the Defendant. Likewise, the evidence shows that inmates

at the jail were advised before placing a telephone call that the conversations were monitored

and recorded. We conclude that the totality of the circumstances does not reflect that the

Defendant‟s statement to his mother during the telephone call was involuntary or the result of

an unreasonable delay. As a result, the trial court properly denied the motion to suppress, and

the Defendant is not entitled to relief on this basis.

III Autopsy Photograph

The Defendant contends that the trial court erred by permitting an autopsy photograph

depicting the victim‟s face after being cleaned by the medical examiner. He argues that the

photograph was irrelevant and used to prejudice the jury because he offered to stipulate that

the victim was alive but was now deceased. The State responds that the trial court properly

admitted the photograph because it was relevant to identifying the victim. We agree with the

State.

Evidence is relevant and generally admissible when it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Tenn. R. Evid. 401, 402. Relevant

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evidence, however, “may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Tenn. R. Evid. 403. Questions regarding the admissibility and relevancy of

evidence lie within the discretion of the trial court, and the appellate courts will not “interfere

with the exercise of that discretion unless a clear abuse appears on the face of the record.”

State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136,

141 (Tenn. 2007)). A trial court abuses its discretion when it applies an incorrect legal

standard or reaches a conclusion that is “illogical or unreasonable and causes an injustice to

the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).

Photographs of victims “are admissible in murder prosecutions if they are relevant to

the issues on trial, notwithstanding their gruesome and horrifying character.” State v. Banks,

564 S.W.2d 947, 950-51 (Tenn. 1978). When determining the admissibility of such

evidence, the trial court should consider

their accuracy and clarity, and whether they were taken before the corpse was

moved, if the position and location of the body when found is material; the

inadequacy of testimonial evidence in relating the facts to the jury; and the

need for evidence to establish a prima facie case of guilt or to rebut the

defendant‟s contentions.

Id. at 951. Unfair prejudice results when there is “an undue tendency to suggest [a] decision

on an improper basis, commonly, though not necessarily, an emotional one.” State v. Dotson,

450 S.W.3d 1, 91 (Tenn. 2014) (quoting Banks, 564 S.W.2d at 950-51).

At a jury-out hearing, the prosecutor told the trial court that he intended to use a

photograph, which had been taken after the victim‟s body had been cleaned by the medical

examiner, for the purpose of identifying the victim. The Defendant objected, arguing the

photograph was unnecessary. The trial court determined that the State had the burden of

establishing the victim‟s identity and of showing the victim was killed. The court overruled

the objection after noting that the photograph did not show any wounds or anything

“untoward.” The court found the photograph was relevant and was not prejudicial. Although

trial counsel was willing to make the necessary stipulations to prevent the prosecutor‟s

introducing the photograph, the court noted that the State had the burden of proving guilt

beyond reasonable doubt and that the prosecutor was not obligated to accept the stipulation.

We conclude that the trial court did not err by admitting the photograph. The

photograph was used during the testimony of Ms. Mosely and the medical examiner to

identify the victim and to show the victim was deceased. Although the Defendant offered to

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stipulate that the victim was deceased, the State had the burden of establishing the elements

of first degree premeditated murder beyond a reasonable doubt, which included proof that the

victim was deceased. The photograph is not gruesome, shows only the victim‟s head and

upper chest area, and does not show any blood or injuries. Therefore, the probative value of

the photograph was not substantially outweighed by the danger of unfair prejudice. The

Defendant is not entitled to relief on this basis.

IV Request for Transcripts

The Defendant contends that the trial court erred by denying his request for transcripts

of opening statements, closing arguments, and the final jury instructions provided at the trial.

He argues that the court‟s denying his request because he was indigent and unable to afford

the cost of the transcripts violated due process and equal protection principles and prevented

his preparing a “complete appellate record.” The State responds that the trial court properly

denied the Defendant‟s request because he failed to establish the necessity of the transcripts.

“[A]n indigent defendant in a criminal prosecution must be provided . . . the tools of

an adequate defense or appeal when those tools are available for a price to other defendants.”

State v. Elliott, 524 S.W.2d 473, 475 (Tenn. 1975). Generally, a transcript of previous

proceedings in an indigent defendant‟s case must be provided when the transcript is “needed

to vindicate a legal right.” Id. at 476. Likewise, “„the State must provide an indigent

defendant with a transcript of prior proceedings when that transcript is needed for an

effective defense or appeal.‟” Id. (quoting Britt v. North Carolina, 404 U.S. 226, 227

(1971)); see State v. West, 767 S.W.2d 387, 402 (Tenn. 1989).

A defendant has the burden on appeal to show “that the transcript was needed to

vindicate a legal right.” West, 767 S.W.2d at 402. A trial court‟s decision regarding a

request for transcripts is reviewed for an abuse of discretion. State v. Colvett, 481 S.W.3d

172, 203 (Tenn. Crim. App. 2014). The Supreme Court has stated that appellate courts

should consider “the value of the transcript to the defendant in connection with the appeal or

trial for which it is sought” and “the availability of alternative devices that would fulfill the

same functions as a transcript.” Britt, 404 U.S. at 227; see Elliott, 524 S.W.2d at 476.

The record reflects that at the conclusion of the motion for a new trial hearing, trial

counsel submitted to the trial court an order for the preparation of transcripts. The trial judge

stated that although he would sign the order, he would not authorize transcripts for opening

statements, closing arguments, and the final jury instructions, “barring something being

raised.” The judge stated that if an issue was raised relative to those portions of the trial

proceedings and a transcript was needed, he would “consider it.” The judge stated that

“they‟re in there, so if somebody needs to refer to them they are there.” The court noted the

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defense made no objections during the relevant portions of the trial. Counsel informed the

court that appellate counsel was present and had requested the relevant transcripts. The

judge responded,

I understand that and no, barring there be some – I am not having a court

reporter transcribe opening, closing, and voir-dire, so that [appellate counsel]

can read them at her leisure. She is certainly welcome to go and listen to them

and if they find some error that they wish to raise that you, as trial attorney, did

not notice, or see, or raise in any way, then by all means, we will get those

done. But, I am not doing them in just preparation for that.

And the instructions are there and as I recall it the lesser includeds that you

requested were, in fact, all charged, so that at this time there is no issue around

it.

Appellate counsel asked the trial judge, “Your Honor, may I just inquire, if the Court

will allow me, is it a matter of costs?” The judge replied, “Yeah, cost and time.” Counsel

also asked the judge, “So if a private attorney were to ask and be willing to pay the costs,

would you grant the motion?” The judge stated, “If they were willing to pay the cost.” The

judge said, “I‟m willing to pay that for you, too, if you are – but, you may listen to it and I

would give that same agreement to the private attorney.”

We conclude that the trial court did not abuse its discretion in denying the Defendant‟s

request for transcripts of the opening statements, closing arguments, and final jury

instructions. Although the court denied the Defendant‟s request for the relevant transcripts,

the court explained that the audio recordings from the proceedings were preserved, that

appellate counsel was permitted to listen to the recordings, and that should appellate counsel

discover an issue for the appeal, the court would reconsider the request for transcripts. We

note that the Defendant has not raised an issue on appeal related to opening statements,

closing arguments, or the final jury instructions, although appellate counsel was permitted to

review the audio recordings. We, therefore, conclude that the Defendant has failed to

establish that the relevant transcripts are needed to vindicate a legal right. The Defendant is

not entitled to relief on this basis.

In consideration of the foregoing and the record as a whole, we affirm the judgment of

the trial court.

____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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