State of Tennessee v. Walter Collins

04/18/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 11, 2017 Session

STATE OF TENNESSEE v. WALTER COLLINS

Appeal from the Criminal Court for Shelby County

No. 15-00211 Paula Skahan, Judge

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No. W2016-01819-CCA-R3-CD

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The Shelby County Grand Jury charged the Defendant-Appellant, Walter Collins, and

two codefendants with first degree felony murder. Following a jury trial, Collins, who

was seventeen years old at the time of the offense, was convicted as charged and

sentenced to life imprisonment. On appeal, Collins argues: (1) the trial court erred in

denying his motion to suppress his statement to police; (2) the trial court erred in

admitting certain evidence at trial; (3) the evidence is insufficient to sustain his

conviction; and (4) his sentence of life imprisonment violates the prohibition against

cruel and unusual punishment in the United States and Tennessee Constitutions, and the

trial court abused its discretion in failing to dismiss his indictment on that basis.1 We

affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and D. KELLY THOMAS, JR., JJ., joined.

Stephen C. Bush, District Public Defender; and Barry W. Kuhn (on appeal), and Jennifer

Case and Amy G. Mayne (at trial), Assistant Public Defenders, Memphis, Tennessee, for

the appellant, Walter Collins.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Pamela Stark and Samuel Winnig,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

1

We have reordered the issues on appeal for clarity.

This case relates to the March 9, 2014 shooting death and robbery of the victim,

Larry Wilkins. Collins and two codefendants arranged to purchase a Mustang the victim

had listed on Craigslist and, after test driving this car, robbed the victim of his automobile

and shot him.

Suppression Hearing. At the hearing on Collins’ motion to suppress his

statement to police, Sergeant Kevin Lundy with the Memphis Police Department testified

that he investigated the death of the victim. He said that several witnesses at the scene

had provided information to the police. Corrie O’Bryant informed officers that she had

seen three men standing around the open hood of a Ford Mustang and, a minute later,

heard five gunshots. Lekevva Allen told police that after hearing four or five gunshots,

she looked out her bedroom window and saw two men running away and saw the

Mustang speeding off toward the exit. Joanna Martin informed police that she saw two

men running from the scene.

Sergeant Lundy said a car belonging to Collins’ brother, codefendant Brandon

Vance, was left at the scene of the crime. After obtaining a warrant, the police searched

this car on March 10, 2014, and discovered Vance’s Tennessee identification, a tow ticket

for Vance’s car, and Vance’s driver’s license application. In addition, some Southwest

Community College financial paperwork containing Collins’ name and social security

number and a juvenile summons for a traffic ticket made out to Collins were found inside

Vance’s car. Sergeant Lundy acknowledged that he was unsure whether the financial

paperwork actually belonged to Collins.

On March 11, 2014, Sergeant Lundy took statements from Vance and Martiness

Henderson, the other codefendant. Vance told police that he, Henderson, and Collins

planned to steal a car the victim had listed on Craigslist and that during this offense,

Vance’s car was left at the scene. Vance’s statement corroborated not only the

statements from witnesses at the scene but also the paperwork related to Collins that was

found in Vance’s car at the scene. Henderson, who was a juvenile, had his mother

present during his interview and told the officers that he, Vance, and Collins planned to

rob the victim of the Mustang that had been listed on Craigslist.

Sergeant Lundy said that around 9:00 a.m. on March 12, 2014, Collins was

brought to the homicide office and subsequently gave a statement to police at 9:58 a.m.

Because Collins was a juvenile, his mother was present when he was advised of his

Miranda rights and when he signed the Advice of Rights form prior to giving his oral and

written statements to police. Sergeant Lundy said Collins’ statement contained a

notation, “He read aloud,” which meant that Collins read the Advice of Rights form aloud

in the presence of his mother and the police. Sergeant Lundy said Collins appeared to

understand the Advice of Rights form and did not appear to have any learning

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disabilities. He added that Collins’ mother never indicated that Collins had been enrolled

in any special education classes or had any educational impairments that prevented him

from knowingly waiving his rights or giving a statement.

After Collins read this form aloud, Collins and his mother signed the Advice of

Rights form before Collins gave his statement. Collins told the police that he, Vance, and

Henderson rode to the scene in Vance’s car, hid in a corner, and when the victim came

out, they approached him, and shots were fired. Collins jumped into the Mustang

because he was the only one who knew how to drive a standard transmission and then

drove to his sister’s home. Collins added that because Vance’s car would not crank,

Vance and Henderson ran away from the scene. Collins said that they had walkie-talkies,

and a single walkie-talkie was found at the scene. Collins’ statement corroborated the

other evidence obtained by the police regarding this offense.

Sergeant Lundy acknowledged that while fingerprints belonging to Vance and

Henderson were found on the victim’s Mustang, Collins’ fingerprints were not found on

this car. He said that until Vance’s and Henderson’s interviews, no one had told the

police that Collins was involved in the offense. However, after Vance and Henderson

implicated Collins in the crime, Collins was arrested without a warrant sometime prior to

9:00 a.m. on March 12, 2014. Collins was then brought to the homicide office, despite

the fact that he had not been charged with any crime. Sergeant Lundy confirmed that the

reason Collins had been brought to the homicide office was to determine his

“involvement in this particular incident.”

Sergeant Lundy first encountered Collins, who had been shackled or handcuffed,

in one of the interview rooms at the homicide office. Although Sergeant Lundy said that

juveniles are typically given an opportunity to talk to a parent or guardian before their

interview, he could not say whether this procedure was followed in Collins’ case. He

conceded that while Collins was in the interview room, he was not free to leave. He

confirmed that no video or audio recording had been made of Collins’ interview.

Sergeant Lundy said he did not ask Collins to explain, in his own words, what the

Advice of Rights form meant because that was not his normal procedure. He

acknowledged that he did not ask Collins if he understood what a lawyer was and did not

tell Collins what the consequences of his appearing in court might be. He stated that

Sergeant Kelly was also present during Collins’ interview and that although Sergeant

Wilkie was not in the room during Collins’ questioning, he was present when Collins’

written statement was typed. Sergeant Lundy confirmed he was the officer who actually

took Collins’ statement.

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Sergeant Lundy said that neither Collins nor Collins’ mother had any questions

about the Advice of Rights form during the interview. He stated that if a suspect asked

questions about the meaning of words on the Advice of Rights form, then he explained

the meaning of these words before continuing with the interview.

Sergeant Lundy said that unlike Vance, Collins never provided any evidence of an

alibi and that if Collins had given an alibi, the police would have investigated it before

continuing with Collins’ statement. During the interview, Collins gave his address as

3730 Fieldbrook Street, Memphis, which was two blocks away from Annie’s Apartments,

which was where the Mustang was found by police. In response to the questions, “Do

you understand each of these rights I’ve explained to you?” and “Having been read these

rights, do you wish to talk to us now?,” Collins specifically wrote “Yes” on the Advice of

Rights form and the written statement and signed his initials. Sergeant Lundy said

Collins was given an opportunity to make any changes to his written statement prior to

signing and initialing it.

Sergeant Lundy acknowledged that the police records regarding the interview did

not reflect whether Collins was offered food, drink, or bathroom breaks during his time in

the homicide bureau. While he did not recall Collins asking for any of these things, he

said that if Collins had asked for them, then they would have been provided. When

Sergeant Lundy left Collins’ presence in the interview room, Collins had not been

charged with any particular crime. He added that the case officer, Sergeant Hurst, was

responsible for contacting the district attorney’s office to determine whether Collins

would be charged as a juvenile or an adult and that this determination was made before a

charging decision could be made.

Sergeant Lundy acknowledged that he never took Collins to appear before a

judicial commissioner or magistrate prior to being taken to juvenile detention. He said he

never saw a magistrate advise Collins that he was being charged with a crime, inform him

of his rights, or tell him that there was probable cause to detain him. Sergeant Lundy

admitted that he did not know whether Collins was ever taken before a magistrate after

his arrest on March 12, 2014.

Dr. James Walker, an expert in the fields of forensic psychology and

neuropsychology, testified that he performed a comprehensive neuropsychological

evaluation of Collins. He said Collins had a full scale intelligence quotient (IQ) of 82,

which was in the low average range and meant that Collins’ “reasoning and thinking

abilities [were] not as well developed as, perhaps, the average person in our society.” He

also said Collins’ verbal IQ score was 72, which indicated that he “had significant

problems understanding and dealing with language.” Dr. Walker opined that Collins’ test

scores showed that he functioned on a fifth grade level and that he would be able to use

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his language skills as effectively as only the lowest three people out of a hundred.

However, Dr. Walker acknowledged that Collins scored an 88 on perceptual reasoning,

which placed him on the higher end of low average and indicated that he performed

better on non-verbal skills.

Dr. Walker concluded that Collins’ scores on two different tests showed that he

was “a very compliant, highly suggestible person.” He said Collins was “extremely

susceptible to someone suggesting he should change his answer” and that Collins “would

typically do what other people want[ed] him to do rather than what he chooses to do.”

Relevant to this issue, Dr. Walker noted that Collins said his mother told him to talk to

the police officers about this case. Dr. Walker diagnosed Collins with depressive

disorder and a dependent personality disorder, which contributed to his being very

dependent on others and doing what others wanted him to do.

Dr. Walker also opined that Collins would be unlikely to understand the rights

described in the Advice of Rights form or the consequences of waiving these rights and

would have signed the waiver in order to comply with the wishes of the police and his

mother. Dr. Walker said that Collins told him it never occurred to him not to talk to the

police during his interview.

Dr. Walker admitted that Collins did not have any brain injuries or disorders that

would have entitled him to full social security disability benefits. He said Collins could

do simple tasks but would be unable to complete complex tasks involving multiple steps.

Dr. Walker acknowledged that Collins, at age 15, began working as a cook at Krystal’s

and performed so well in that job that his supervisor asked him to fill in at the drive-

through window and the cash register without any specific training. However, he

asserted that it would take Collins longer than the average employee to learn these tasks.

Dr. Walker said his testimony was not that Collins was unable to understand the

Miranda warnings. He acknowledged that if Collins had received prior exposure to the

Miranda rights, then it would be easier for him to understand these rights than if he had

never been exposed to these rights. He also acknowledged that if people in Collins’

family or peer group had been involved in interactions with the police, then this would

affect Collins’ knowledge as to how to conduct himself around police.

Dr. Walker said Collins disclosed that he had “great difficulty navigating his

relationship with his mother” because “she was a very strong-willed person.” He

acknowledged that Collins’ desire to please others could have motivated him to provide

certain information to him and his defense attorneys in order to help his case.

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Dr. Walker stated that he was not surprised to learn that Collins told people during

phone conversations in jail that he could not talk to them about the crime because the call

was being recorded. He said the difference between the phone situation and the interview

situation was that Collins’ decision to talk to the police “was a forgone conclusion given

his personality characteristics.” Dr. Walker was not surprised to learn that Collins had

gone to Mississippi to look for an engine for his own vehicle immediately after the

victim’s death. He explained that “[p]eople do all kinds of things after they do bad

things[.]”

Dr. Walker said he was surprised to learn that Collins’ codefendants claimed

Collins was the one who found the Craigslist advertisement and who wanted to steal the

car. He also said he was surprised to discover that the codefendants claimed Collins used

a masking application to disguise his cell phone number when sending texts to the victim

about the Mustang. Dr. Walker acknowledged that Collins said he provided the gun used

to kill the victim.

Trial. Dionne Lee testified that on the afternoon of March 9, 2014, she and her

boyfriend, the victim, finished their shifts at FedEx and returned to their apartment in

Memphis. Lee decided to take a nap, and she asked the victim to wake her up at 8:00

p.m. When she awoke on her own around 8:00 p.m., she noticed that the victim was

asleep on the couch, and she returned to sleep. Sometime between 11:30 p.m. and

midnight, Lee was awakened by the sound of five or six gunshots fired nearby. When

she was unable to find the victim inside the apartment, she went outside. She saw some

people standing around who appeared to be “in shock a little,” and one of these

individuals told her that “the guy in the Mustang shot that guy” and pointed in the

direction of her apartment building. When Lee turned around, she saw the victim lying in

the parking lot where his Mustang had been parked. She immediately ran to him and

realized that he was dead.

When the police arrived at the scene, Lee gave them the victim’s cell phone,

which had been on the ground next to the victim’s body. Lee said the victim had been

trying to sell his Mustang so he could buy a Camaro, and the victim’s phone contained

some text messages and phone calls between the victim and another person regarding the

Mustang. One text message in particular had been sent at 11:00 p.m. that night. As Lee

looked around the parking lot, she noticed a Monte Carlo, that she had never seen before,

that was backed into a space in the parking lot.

Corrie O’Bryant testified that she and her boyfriend, Frederick Moss, were coming

home around midnight on March 9, 2014, when she saw three or four men under the open

hood of a Mustang at her apartment complex. She parked her vehicle, and thirty to forty-

five seconds later, she heard gunshots. She went inside her apartment for five minutes

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before walking back outside to find out what had happened. When she got to the parking

lot, she noticed the victim lying on the ground and heard a lady start screaming, “They

killed him.” She also realized that the Mustang she had seen was missing.

Fredrick Moss also testified that he saw four or five men gathered around the open

hood of a Mustang. He said that as he and O’Bryant were getting out of the car, he heard

four or five gunshots.

Lekevva Allen testified that she was studying in her apartment around midnight on

May 9, 2014, when she heard five gunshots. She immediately ran to her back bedroom,

which was the direction from which the shots were fired. When she looked out her

window there, she saw two or three men gathered together. Allen ran back to the front of

the apartment to determine if her boyfriend heard the shots, and then less than a minute

later, returned to the back bedroom window. As she looked out, she saw one man fall

down, two other men run away, and observed the Mustang pulling out of the parking lot.

Allen said she was unable to see who got into the Mustang before it left the apartment

complex.

Officer Michael Huff testified that when he arrived at the crime scene, he saw the

deceased victim and several people gathered together. He and other officers noticed that

the victim’s Mustang was missing from the parking lot and that a Monte Carlo was

parked in one of the spaces. The Monte Carlo stood out because its windows were rolled

down, which was unusual because the weather at the time was chilly. In addition, the

other cars in the lot had their windows rolled up and were locked, probably because there

had been several car thefts at that apartment complex. Officer Huff said he put up crime

scene tape to secure the area and began separating the witnesses so statements could be

obtained.

Officer James Smith testified that he collected four spent shell casings at the

scene. He said three of the casings were .380 caliber and one casing was nine millimeter.

Sergeant Reginald Titus testified that he suspected that the Monte Carlo belonged

to the person who killed the victim, and he and other officers kept the car under

surveillance all night with the hope that the suspect would return to claim it. Sergeant

Titus identified a photograph of the Monte Carlo that had a temporary tag placed in the

window.

Sergeant James Sewell testified that after obtaining a search warrant, he

discovered numerous items inside the Monte Carlo. He found an identification, an

application for a driver’s license, and an employment application that contained Vance’s

name. He also found a temporary tag listing Vance’s name and an address of 3730

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Fieldbrook Street, Memphis. In addition, he found a juvenile summons issued to Collins

for a traffic ticket that contained an address of 3730 Fieldbrook Street, Memphis and

another document that referenced Collins’ name inside Vance’s vehicle. In the backseat

of the Monte Carlo, Sergeant Sewell found a magazine advertising cars for sale and a

walkie-talkie that was powered on and functioning. He admitted that although he found

approximately twenty items that belonged to Vance inside the car, he found only two

items that belonged to Collins.

Officer James Johnson testified that on March 10, 2014, around 10:00 a.m., he saw

what appeared to be the victim’s Mustang but lost track of it when it turned into the

entrance for Annie’s Apartments, which was near the address of 3730 Fieldbrook Street,

Memphis. He later located the Mustang, which was parked with the doors partially open

and the keys inside, in the apartment complex.

Sergeant Kelly stated that sometime before 9:00 a.m. on March 12, 2014, Collins

was arrested without a warrant and placed in handcuffs. Although the police had

probable cause to arrest Collins, he was not charged with any particular crime at the time

of his arrest. Collins was then taken to the homicide office by a patrol officer and while

Collins’ mother was not permitted to ride in the police car with him, she arrived shortly

after Collins reached the police station.

Collins got to the homicide office around 9:00 a.m. and was shackled and placed

in an interview room with two other officers until his mother arrived. Sergeant Kelly said

that at the beginning of the interview, he introduced himself and Sergeant Lundy as

homicide investigators with the Memphis Police Department. Sergeant Kelly allowed

Collins’ mother to sit down and asked Collins if he needed to use the restroom. Collins

was allowed to speak with his mother. Sergeant Kelly advised Collins of his Miranda

rights and at 9:22 a.m. presented him with the Advice of Rights form. He acknowledged

that he did not ask Collins to explain what Advice of Rights form meant in his own words

but asserted that Collins did not have any questions about his rights and stated that he

understood his rights. Sergeant Kelly then told Collins that he would not be coerced into

giving a statement, and when Collins indicated that he did not understand what that

meant, Sergeant Kelly explained that “coercion” meant that no one was “going to come

in here and beat [him] or kick [him] or punch [him] or threaten to lock up [his] mama if

[he] [did]n’t talk to [the police].” Collins’ mother was able to ask any questions that she

had at the time. Sergeant Kelly said that both Collins and his mother appeared to

understand the Miranda rights before both Collins and his mother signed and initialed the

Advice of Rights form in his presence.

Sergeant Kelley said that he and Sergeant Lundy, who were both dressed in suits,

talked to Collins about why he was there that day. During the interview, Collins stated

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that his home address was 3730 Fieldbrook Street, Memphis. Collins explained that he,

Vance, and Henderson found the listing for the Mustang on Craigslist and planned to

steal it. Collins used his stepfather’s cell phone and an application called Text Free,

which provided a false number, to contact the victim before driving to the victim’s

apartment in Vance’s Monte Carlo. He said that although his stepfather’s phone did not

have cellular service, they were able to use his stepfather’s phone with his sister’s Wi-Fi.

When they left his sister’s home to enact the plan, they used a different cell phone that

had cellular service but were able to use the same false number they had created with the

Text Free application. Collins said they dropped off Henderson ahead of time at the

victim’s apartment complex. The plan was to have Henderson hide while he and Vance

looked at the Mustang and then have Henderson appear with a gun and steal the keys to

the victim’s car. Collins admitted that he provided the gun, a .380 caliber pistol, that

Henderson used to shoot the victim. He said that because they only had one walkie-

talkie, they did not use it during the commission of the offense.

Sergeant Kelly said Collins asserted that he and Vance test drove the car and when

they returned, Henderson came around the side of the apartments and fired six shots at

the victim. Then, Collins, Vance, and Henderson tried to leave the scene in Vance’s

Monte Carlo, but it would not crank, so Collins, who was the only one of the three of

them who could drive a standard transmission, and Henderson got into the Mustang and

left the scene as Vance ran away. Collins and Henderson took the Mustang to the

Annie’s Apartments in Frayser and then walked to Henderson’s home, which was nearby.

The next morning, Collins and Henderson returned to the apartments so Henderson could

learn to drive the Mustang, and they encountered a police officer, who pulled in after

them into the complex. Collins stated that he was sorry for his actions and regretted what

had happened. Sergeant Kelley included the information Collins had provided in a

written statement, which was initialed and signed by Collins and his mother in his

presence at 10:20 a.m. The written statement also included the Miranda warnings that

were given to Collins prior to his signing the statement. Sergeant Kelly acknowledged

that Sergeant Wilkie was also present when Collins’ statement was being typed, which

meant that there were three police sergeants and a staff person present when Collins gave

his statement. Collins started his statement at 9:58 a.m. and concluded it at 10:20 a.m.

Sergeant Kelly said that Collins’ interview was “extremely cordial” and “rather

short” because Collins was “forthright” regarding his involvement in the planning and

execution of the robbery of the victim. He stated that he had grown up with Collins’

mother and that she had been involved when Vance, Collins’ brother, gave his statement

to police about this offense a day or two earlier. Sergeant Kelley noted that Collins was

two months away from turning eighteen years old at the time he gave his statement in this

case.

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Sergeant Kelly said that Collins mother was present during the interview because

Collins was a juvenile. However, he said, “With juveniles, people under 18, we try to

have a parent present, but it is not mandatory that a parent be present . . . when we take a

statement from a juvenile.” Sergeant Kelley said Collins and his mother were allowed to

read the written statement before Collins initialed each page and signed the statement.

After he signed the statement, Collins was placed back into the interview room, and

Sergeant Kelly discussed with a prosecutor the contents of the Collins’ statement and

what action to take.

Sergeant Kelly admitted that he did not include in the written statement or his

supplement Collins’ detailed explanation of how he and the codefendants used the Text

Free application to create a false cell phone number. He said that he had made

contemporaneous written notes regarding the details surrounding Collins’ use of the Text

Free application but that his notes had been destroyed. Sergeant Kelly acknowledged that

he was a “pretty tech savvy” officer, which allowed him to understand how the Text Free

application created a false cell phone number. He added that Collins appeared pretty tech

savvy as well, explaining that Collins knew about the Text Free application as well as

“every other app[lication] that was on his phone at the time.”

Dr. Marco Ross, the Deputy Chief Medical Examiner for Shelby County, testified

that he performed the autopsy on the victim. He stated that the victim had been shot six

times and that any one of the three shots to the victim’s back could have caused the

victim’s death.

Following the conclusion of the proof, the jury convicted Collins of first degree

felony murder, and the trial court imposed a sentence of life imprisonment.

ANALYSIS

I. Denial of Motion to Suppress. Collins argues that the trial court erred in

declining to suppress his statement to police. He claims that his statement should have

been suppressed because the police lacked probable cause to arrest him, because he was

denied the right to a prompt determination of probable cause, and because his statement

was involuntary because of the coercive actions of the police.

Prior to trial, Collins filed a motion to suppress his statement to police on the basis

that it was obtained in violation of the Fourth, Fifth, and Fourteenth Amendments to the

United States Constitution and article I, sections 7 and 9 of the Tennessee Constitution.

Initially, we note that a trial court’s findings of fact at a suppression hearing are binding

on an appellate court unless the evidence preponderates against them. State v. Bell, 429

S.W.3d 524, 528 (Tenn. 2014); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

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“Questions of 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 in the trial court “is entitled to

the strongest legitimate view of the evidence adduced at the suppression hearing as well

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

23; see Bell, 429 S.W.3d at 529. Despite the deference given to trial court’s findings of

fact, this court reviews the trial court’s application of the law to the facts de novo with no

presumption of correctness. State v. Montgomery, 462 S.W.3d 482, 486 (Tenn. 2015)

(citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)); State v. Day, 263 S.W.3d 891,

900 (Tenn. 2008) (citing State v. Williams, 185 S.W.3d 311, 315 (Tenn. 2006); State v.

Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).

A. Lack of Probable Cause. Collins argues that his confession should have been

suppressed because he was arrested without probable cause. He claims that because

Vance and Henderson were criminal informants, the police could not rely on the

information provided by them unless (1) they had a basis of knowledge and (2) they were

credible or their information was reliable. See State v. Bishop, 431 S.W.3d 22, 38 (Tenn.

2014); State v. Jacumin, 778 S.W.2d 430, 432 (Tenn. 1989). Collins argues that because

neither Vance nor Henderson were shown to be credible or reliable under this second

prong, the officers lacked probable cause to arrest him. He further contends that because

his statement was taken shortly after his arrest with no intervening independent act of free

will on his part that purged the taint of his unlawful arrest, his statement should have

been suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S.

471, 485-88 (1963).

At the suppression hearing, the trial court found that the two documents containing

Collins’ name that were found in Vance’s car were sufficient to establish that Vance and

Henderson’s information was reliable. However, Collins claims the proof at trial failed

to establish (1) the papers belonged to him, and (2) were in the car because he was at the

crime scene. He argues that Sergeant Lundy was unable to testify that the Southwest

Community College financial paperwork belonged to Collins and claims that two

documents containing his name in Vance’s car were insufficient to place him at the scene

because they could have been left in Vance’s car at any point in time.

Collins asserts that the police lacked probable cause to arrest him based on the

statements of Vance and Henderson, who were criminal informants. “Probable cause for

an arrest without a warrant 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 man in believing that the [defendant] had

committed or was committing an offense.” State v. Bridges, 963 S.W.2d 487, 491 (Tenn.

1997) (internal quotation marks and citations omitted). The courts in Tennessee have

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routinely distinguished between “citizen informants, or bystander witnesses, and criminal

informants, or those from the criminal milieu.” State v. Cauley, 863 S.W.2d 411, 417

(Tenn. 1993) (internal quotations marks and citation omitted). When a person from the

criminal milieu provides information that contributes to the arrest of an individual, a

totality-of-the-circumstances analysis may be appropriate in determining whether

probable cause exists to support the arrest. Compare State v. Tuttle, 515 S.W.3d 282,

307-08 (Tenn. 2017) (overruling Jacumin and adopting the Gates totality-of-the-

circumstances analysis when determining whether an affidavit establishes probable cause

for issuance of a search warrant), with State v. Echols, 382 S.W.3d 266, 279 (Tenn. 2012)

(holding that when officer relies in part on information from an informant from the

criminal milieu, then the State must show that this informant “(1) has a basis of

knowledge and (2) is credible or his information is reliable”). In conducting this totality-

of-the-circumstances analysis, an informant’s “veracity,” “reliability,” and “basis of

knowledge” remain highly relevant but should not be recognized as independent

requirements to be rigidly applied in each case. See Tuttle, 515 S.W.3d at 303 (citing

Illinois v. Gates, 462 U.S. 213, 230 (1983)). Circumstances surrounding the information

given by an informant, such as independent police corroboration of this information or

corroboration of several details of this information, may increase the reliability of the

facts provided by the informant. State v. Simpson, 968 S.W.2d 776, 782 (Tenn. 1998).

When considering the reliability of the criminal informant in this case, the trial

court recognized that although the information provided by Vance and Henderson was

“not presumptively credible,” the reliability of their information was established because

they “were present and involved during the commission of the offense and any deficit in

their credibility was outweighed by the[] consistency [of their statements] and the

corroboration of the documents [referencing Collins that were found] in the vehicle.”

The evidence does not preponderate against the trial court’s finding that Vance and

Henderson provided reliable information that Collins committed the offense in this case,

and we conclude, based on the totality of the circumstances, that probable cause existed

to support Collins’ arrest.

B. Neutral and Detached Magistrate. Collins also argues that his statement

should have been suppressed because it was obtained in violation of his Fourth

Amendment right to a prompt determination of probable cause following his warrantless

arrest. He asserts that his detention was unreasonable because he was never taken before

a magistrate until his appearance in juvenile court, and he asserts that this claim is

supported by Sergeant Lundy’s admission that he did not know whether Collins was ever

taken before a magistrate for a probable cause determination. Collins maintains that the

police took his statement before taking him before a magistrate in order to gather

additional proof justifying his arrest and that his statement to police should have been

suppressed as fruit of the poisonous tree.

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“[T]he Fourth Amendment requires a timely judicial determination of probable

cause as a prerequisite to detention.” Gerstein v. Pugh, 420 U.S. 103, 126 (1975); see

State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996). When individuals are arrested

without a warrant, they must be brought before a magistrate to “‘seek a prompt judicial

determination of probable cause.’” Bishop, 431 S.W.3d at 42 (quoting Gerstein, 420 U.S.

at 125); see Tenn. R. Crim. P. 5(a)(1); Huddleston, 924 S.W.2d at 672 n.2 (Tenn. 1996).

A delay of less than forty-eight hours is “presumptively reasonable”; however, when the

delay exceeds forty-eight hours, the State must show that “‘a bona fide emergency or

other extraordinary circumstance’ caused the delay.” Bishop, 431 S.W.3d at 42 (quoting

County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991)). Even a delay of less than

forty-eight hours may be unreasonable “if the delay is ‘for the purpose of gathering

additional evidence to justify the arrest’ or if the delay is ‘motivated by ill will against the

arrested individual, or delay for delay’s sake.’” Id. (quoting McLaughlin, 500 U.S. at

56).

The remedy for failing to bring a defendant before a magistrate without

unnecessary delay is the exclusion of the evidence obtained as a result of the unlawful

detention, unless an exception to the exclusionary rule applies. Id. (citing Huddleston,

924 S.W.2d at 673). Under the “‘fruit of the poisonous tree’ doctrine, . . . any evidence

obtained by virtue of a suspect’s unlawful detention must be excluded from trial unless

the arrested person’s statement was ‘sufficiently an act of free will to purge the primary

taint’ of the illegal detention.” Id. (quoting Huddleston, 924 S.W.2d at 674-75). When

an arrest is supported by probable cause, the arrestee’s “ensuing detention is typically not

illegal until it ‘ripens’ into a Gerstein violation.” Id. (quoting Huddleston, 924 S.W.2d at

675). Therefore, 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 trial court made several findings of fact relative to this issue in its order

denying the motion to suppress. It found that Collins was arrested without a warrant on

the morning of March 12, 2014, and that at the time of his interview, Collins had not been

charged with any crime. It also found that Collins was physically restrained during the

interview and was not free to leave. Moreover, the trial court found that Collins signed

an Advice of Rights form at 9:22 a.m. before being interviewed by Sergeants Kelly and

Lundy, that Collins completed his written statement at 10:20 a.m., and that Collins signed

the written statement at 10:30 a.m.. The trial court recognized that “[t]he record before

this Court does not reflect any probable cause determination before the juvenile court

hearing on April 23, 2014.

The trial court also made the following conclusions of law regarding this issue:

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[T]he only remedy for an extended detention without a probable cause

determination is suppression of statements made after the detention has

extended beyond a constitutionally reasonable duration, which our courts

have determined to be 48 hours. [Collins’] incriminating statements, both

oral and written, were given on the same day as when he was originally

detained. Even if [Collins] were unlawfully detained, a statement given

only a few hours after the initial detention cannot be considered induced by

the allegedly unlawful detention.

Accordingly, [Collins] is not entitled to suppression of his

statements because of the duration of his detention prior to a probable cause

determination.

The evidence does not preponderate against the findings of fact made by the trial

court. We have already concluded that sufficient probable cause existed for police to

believe that Collins committed the offense at the time he was arrested. Probable cause

existed based on the statements from Vance and Henderson, the consistency of these

statements, and the documents containing Collins’ name and address that were inside

Vance’s car left at the crime scene. Because the police had probable cause to arrest

Collins at the time he was taken into custody, Collins has failed to show that the delay in

obtaining a probable cause determination by a magistrate was “‘for the purpose of

gathering additional evidence to justify the arrest.’” Id. at 676 (quoting McLaughlin, 500

U.S. at 56). Moreover, because Collins provided his statements to police before his

detention ripened into a Gerstein violation, we also conclude that his statements were not

the product of the illegal detention and, therefore, should not be suppressed.

C. Voluntariness of Statement. Collins next contends that his confession should

have been suppressed because it was involuntary. He contends that his depressive

disorder and dependent personality disorder prevented him from understand the warnings

on the Advice of Rights form and caused him to sign the form in order to comply with the

wishes of the interviewing police sergeants and his mother. Collins asserts that because

his statement was taken to confirm what the police already thought they knew, the

procedure was coercive, which rendered his statement involuntary.

The voluntariness of a confession “remains distinct from Miranda.” State v.

Climer, 400 S.W.3d 537, 567 (Tenn. 2013) (citing Dickerson v. United States, 530 U.S.

at 428, 434-35 (2000)). Because “coerced confessions are inherently unreliable,” only

voluntary confessions are admissible. Id. In order for a statement to be voluntary, it

“‘must not be extracted by any sort of threats or violence, nor obtained by any direct or

implied promises, however slight, nor by the exertion of any improper influence.’” State

- 14 -

v. Kelly, 603 S.W.2d 726, 727 (Tenn. 1980) (quoting Bram v. United States, 168 U.S.

532, 542-43 (1897)).

In determining the voluntariness of a confession, “the essential inquiry . . . is

whether a suspect’s will was overborne so as to render the confession a product of

coercion.” Climer, 400 S.W.3d at 568; see State v. Smith, 933 S.W.2d 450, 455 (Tenn.

1996) (“The test of voluntariness for confessions under article I, § 9 of the Tennessee

Constitution is broader and more protective of individual rights than the test of

voluntariness under the Fifth Amendment.”). In making this determination, the court

must examine the totality of the circumstances, including “‘both the characteristics of the

accused and the details of the interrogation.’” Climer, 400 S.W.3d at 568 (quoting

Dickerson, 530 U.S. at 434). These circumstances include:

[T]he age of the accused; his lack of education or his intelligence level; the

extent of his previous experience with the police; the repeated and

prolonged nature of the questioning; the length of the detention of the

accused before he gave the statement in question; the lack of any advice to

the accused of his constitutional rights; whether there was an unnecessary

delay in bringing him before a magistrate before he gave the confession;

whether the accused was injured[,] intoxicated[,] or drugged, or in ill health

when he gave the statement; whether the accused was deprived of food,

sleep[,] or medical attention; whether the accused was physically abused;

and whether the suspect was threatened with abuse.

Huddleston, 924 S.W.2d at 671 (alteration in original) (emphasis omitted).

Collins asserts that his depressive disorder and dependent personality disorder

prevented him from understanding the warnings on the Advice of Rights form and caused

him to sign the form in order to comply with the wishes of the police and his mother. As

to this issue, the trial court concluded that “although [Collins] may have been somewhat

more impressionable than the average person of his age and gender, [Collins’] desire to

comply with an authority figure was voluntary and based on [Collins’] beliefs about his

own best interests rather than imposed externally by the will of the officers.” In addition,

the trial court held that “[a]lthough [Collins] may have felt compelled to incriminate

himself because of his psychological condition, [Collins’] statements were not induced by

coercive police activity that would violate [his] constitutional rights.”

The evidence presented at the suppression hearing and at trial established that

Collins, who was seventeen years old at the time he gave his statement to police, was

accompanied by his mother and that Collins’ statement was obtained within a few hours

- 15 -

of his arrest. During the interview, Collins and his mother were informed of his Miranda

rights and were given the opportunity to ask questions before Collins signed a written

waiver of these rights and provided his statement. Sergeant Lundy testified that Collins

appeared to understand his Miranda rights and did not appear to have any learning

disabilities. Collins’ entire interview lasted a short period of time, approximately an hour

and a half. Significantly, there was absolutely no evidence offered showing that the

police threatened Collins or engaged in coercive acts during the interview in order to

obtain his statement. Considering the totality of the circumstances, we agree with the

trial court that any mental defects did not render Collins’ statement involuntary.

III. Admission of Certain Evidence. Collins contends that the trial court erred

in admitting several pieces of evidence at trial. “Generally, the admissibility of evidence

rests within the trial court’s sound discretion, and the appellate court does 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 is found to have abused 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.’” Lewis, 235 S.W.3d at

141 (quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)).

However, the following standards govern appellate review of a trial court’s rulings

on hearsay evidence:

Initially, the trial court must determine whether the statement is hearsay. If

the statement is hearsay, then the trial court must then determine whether

the hearsay statement fits within one of the exceptions. To answer these

questions, the trial court may need to receive evidence and hear testimony.

When the trial court makes factual findings and credibility determinations

in the course of ruling on an evidentiary motion, these factual and

credibility findings are binding on a reviewing court unless the evidence in

the record preponderates against them. State v. Gilley, 297 S.W.3d at 760-

61. Once the trial court has made its factual findings, the next questions—

whether the facts prove that the statement (1) was hearsay and (2) fits under

one of the exceptions to the hearsay rule—are questions of law subject to

de novo review. State v. Schiefelbein, 230 S.W.3d 88, 128 (Tenn. Crim.

App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App.

2005).

Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015).

- 16 -

A. Calls and Text Messages to Victim’s Cell Phone. First, Collins argues that

the trial court erred in declining to exclude Lee’s testimony regarding text messages and

phone calls that were made to the victim’s cell phone just before his death. He argues

that the admission of this evidence violated Rule 901(b)(9) because no witness testified

about the process cell phones use to produce accurate copies of messages or phone calls.

In addition, noting that neither the cell phone nor the messages or calls were admitted

into evidence, Collins argues that Lee’s testimony about this evidence, which did not

specify whether she was referring to text messages or voice messages, violated Tennessee

Rules of Evidence 1002.

Just prior to trial, Collins filed a motion in limine to exclude Lee’s testimony

about these text messages and phone calls. At the hearing the morning of Collins’ trial,

the defense argued that Lee’s testimony should be excluded under Tennessee Rules of

Evidence 901 and 1002. The defense noted that at Vance’s earlier trial for this offense,

Lee testified that on the night of the victim’s death, she looked at the victim’s cell phone

and discovered that he had received some phone calls and text messages, the last of

which was received around 11:00 p.m., about someone who was interesting in purchasing

the victim’s Mustang. The defense expressed concern that Lee would testify not only to

the content of these text messages and calls but also the date and time of these messages,

which it claimed violated the “best evidence rule” set forth in Rule 1002. The defense

also argued that the State had failed to show that the times and dates of these text

messages and calls were transmitted through a reliable process or system pursuant to

Rule 901(b). In response, the State explained that the victim’s cell phone was not

available because it had never been collected as evidence. It also claimed that the best

evidence rule applied to documents, not a time stamp on a cell phone.

In ruling on this issue, the trial court recognized that Lee would not be testifying

about what these messages and calls said “word-for-word”; instead, her testimony would

indicate that the person who sent these text messages and calls said he was interested in

buying the victim’s Mustang. The trial court held that the defense could cross-examine

Lee on this issue and that it did not believe the best evidence rule applied. The court also

held that because Collins admitted that he used the Text Free application to text the

victim about the Mustang prior to the killing, it would allow Lee to testify that she

viewed the content of those text messages as well as the time and date of the text

messages and then gave this information to the police. At trial, Lee testified that the

victim’s cell phone had text messages and phone calls between the victim and an

unidentified person about the Mustang the victim was trying to sell.

Rule 901, which requires evidence to be authenticated or identified, provides,

“The evidence of authentication or identification as a condition precedent to admissibility

is satisfied by evidence sufficient to the court to support a finding by the trier of fact that

- 17 -

the matter in question is what its proponent claims.” Tenn. R. Evid. 901(a). As an

example, the rule provides that “[e]vidence describing a process or system used to

produce a result and showing that the process or system produces an accurate result” may

be necessary to properly authenticate evidence. Tenn. R. Evid. 901(b)(9). In addition,

Tennessee Rule of Evidence 1002, also known as the best evidence rule, states, “To

prove the content of a writing, recording, or photograph, the original writing, recording,

or photograph is required, except as otherwise provided[.]”

We believe that Lee’s testimony sufficiently established that she had ample

knowledge of the victim’s phone to identify the text messages and phone calls. See

Tenn. R. Evid. 901(b)(1). We also recognize that the unavailability of the cell phone or

the text messages in this case did not render testimony about the text messages and calls

inadmissible under the best evidence rule set out in Rule 1002. “The best evidence rule is

a rule of preference rather than exclusion.” Iloube v. Cain, 397 S.W.3d 597, 602 (Tenn.

Ct. App. 2012). “It does not exclude evidence but rather requires the introduction of the

best available form of the evidence.” Id. (internal quotation marks and citations omitted).

The State made it clear that Lee’s testimony, which was subject to cross-examination,

was the best evidence available regarding the text messages and calls. Therefore, we

conclude that the trial court did not abuse its discretion in admitting this testimony,

especially in light of the other overwhelming proof of Collins’ guilt that was presented at

trial.

B. Dionne Lee’s Hearsay Testimony. Collins also contends that the trial court

erred in denying his motion to exclude Lee’s testimony about statements made by

witnesses at the scene. Collins asserts that this testimony should not have been admitted

because Lee never identified the declarant and because the State presented no evidence as

to whether the declarant actually observed the shooting or came along after the shooting.

He also contends that Lee’s testimony failed to show that the declarant appeared excited

when making this statement and fell short of what is required by the excited utterance

exception in Rule 803(2).

Collins filed a motion in limine to exclude Lee’s testimony about a statement she

heard from a witness just after victim’s shooting. At the hearing on this motion, the

defense reminded the trial court that at Vance’s earlier trial on this offense, Lee testified

that “a couple of people told her . . . a guy in a Mustang . . . shot another guy who was

lying nearby on the ground.” The defense asked the trial court to exclude this testimony

in Collins’ trial because it was hearsay, and the State countered that it did not believe the

court could determine whether the declarant’s statements were excited utterances or met

some other hearsay exception until after it heard the proof. The trial court agreed,

reserving judgment on that motion until it heard evidence regarding the circumstances

surrounding the declarant’s statement.

- 18 -

At trial, Lee testified that after hearing several gunshots, she went to the parking

lot and noticed several people standing around, who appeared to be “in shock.” When

Lee testified that she asked these people what had happened, the defense objected on the

ground of hearsay. The State argued that the excited utterance hearsay exception applied

to this statement, and the trial court immediately overruled the objection. Lee then

testified that one of these individuals told her “the guy in the Mustang shot that guy” and

pointed in the direction of her apartment building, where the victim’s body was located.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.

R. Evid. 801(c). Under Tennessee Rule of Evidence 803(2), an “excited utterance” not

excluded by the hearsay rule is “[a] statement relating to a startling event or condition

made while the declarant was under the stress of excitement caused by the event or

condition.” In order to meet the excited utterance exception, (1) a startling event or

condition must occur that suspends the normal, reflective thought processes of the

declarant, (2) the declarant’s statement must relate to this startling event or condition, and

(3) the declarant must make this statement while under the stress or excitement from the

event or condition. Franklin, 308 S.W.3d at 823 (citing State v. Stout, 46 S.W.3d 689,

699 (Tenn. 2001), superseded by statute on other grounds as stated in State v. Odom, 137

S.W.3d 572, 581-82 (Tenn. 2004); State v. Gordon, 952 S.W.2d 817, 820 (Tenn. 1997)).

Here, the startling event was that the victim had just been shot, the declarants’

statement was directly related to this startling event, and the statement was made while

still under the stress of the shooting. Accordingly, under our de novo review, we

conclude that Lee’s testimony about these statements was admissible under the excited

utterance exception to the hearsay rule. See Kendrick, 454 S.W.3d at 479.

C. Temporary Tag and Juvenile Court Summons. Lastly, Collins argues that

the trial court erred in admitting evidence regarding a temporary license tag for Vance’s

Monto Carlo, which contained Brandon Vance’s name and address of 3730 Fieldbrook

Street, Memphis, Tennessee, and a juvenile summons, which contained Collins’ name

and this same address.2 Collins claims the information on the temporary tag was

inadmissible hearsay because it was offered to show that Vance owned the Monte Carlo

and was, therefore, at the scene of the crime. He also claims the information on the

juvenile summons was inadmissible hearsay because it was offered to prove that Collins,

who had left the summons behind in Vance’s car, was also at the crime scene. Collins

2

Although the temporary tag and the juvenile summons, which were retained by the clerk’s

office, were not included in the record on appeal, the trial transcript provides sufficient information for us

to determine this issue.

- 19 -

alternatively argues that the juvenile summons, which showed that Collins had committed

multiple driving offenses, was inadmissible as proof of other crimes, wrongs, or acts

under Rule 404(b).

Just before trial, Collins filed a motion in limine to exclude the temporary tag as

hearsay. At the ensuing hearing, the defense argued that the State, at Vance’s earlier trial

for this offense, argued to the jury that the address on the temporary tag was Vance’s

home address, which was close to the location where the victim’s Mustang had been

recovered. The defense asserted that the temporary tag had been offered by the State in

Vance’s trial to prove the truth of the matter asserted, namely that the address on the tag

was Vance’s home address, and that if the State offered the tag for the same purpose in

Collins’ trial, it would again be inadmissible hearsay. The State replied that in Vance’s

trial the temporary tag had been admitted to show that the Monte Carlo belonged to

Vance and that in Collins’ trial, the temporary tag would be admitted not only to establish

Vance’s identity as one of the perpetrators but also to help the State to show that Collins,

Vance’s brother, was involved in the victim’s death, especially in light of the fact that

two documents containing Collins’ name had been found inside the Monte Carlo and that

Collins had told police that his home address was the same address as that listed on the

tag. The trial court held that based on its own research, the tag was admissible as an

exception to the hearsay rule and was a self-authenticating document.

In the same pre-trial hearing, the State also disclosed that it intended to offer a

juvenile summons made out to Collins that was found in the Monte Carlo at the scene.

The State acknowledged that the juvenile summons could raise a Rule 404(b) issue and

said it planned to introduce it because it indicated that Collins was with Vance at the time

the crime was committed.

During the Rule 404(b) hearing outside the presence of the jury, the State argued

that it would be admitting the juvenile summons, not to show that Collins committed a

moving violation, but as proof of his identity as a perpetrator and to establish that Collins

and Vance had the same home address. The State also asserted that the juvenile

summons, which placed Collins at the scene of the crime, corroborated Collins’ statement

to police. The defense responded that the juvenile summons was inadmissible pursuant

to Tennessee Rule of Evidence 404(b) because the probative value of the evidence was

outweighed by the danger of unfair prejudice. It claimed that the summons was

prejudicial because it showed Collins had been charged with not having a driver’s

license, violation of the financial responsibility law, and violation of a traffic ordinance.

The trial court, in holding that the juvenile summons was admissible, determined that the

material issue other than conduct conforming with a character trait was the identity of

Collins as a perpetrator of the felony murder. The court also held that the proof of the

juvenile summons was clear and convincing and that probative value of this evidence,

- 20 -

which connected Collins to Vance’s vehicle at the time of the offense, was not

outweighed by the danger of unfair prejudice.

At trial, Sergeant Titus identified a photograph of the Monte Carlo with the

temporary tag placed in its window. Later, during Sergeant Sewell’s testimony, the

temporary tag and the juvenile summons found inside the Monte Carlo were entered into

evidence. Sergeant Sewell stated that the temporary tag listed Brandon Vance’s name

and an address of 3730 Fieldbrook Street, Memphis, and that the juvenile summons had

been issued to Collins for a traffic ticket that contained the same address of 3730

Fieldbrook Street, Memphis.

After Sergeant Sewell’s provided this testimony, the trial court immediately

instructed the jury that if it found that Collins committed a crime or crimes other than that

for which he was on trial, then it could “not consider such evidence to prove his

disposition to commit such a crime as that on trial” and that the evidence could only be

considered “for the limited purpose of determining whether it provides the defendant’s

identity.” The court also instructed that “[s]uch evidence . . . must not be considered for

any purpose other than that specifically stated.” The trial court gave a similar instruction

at the conclusion of proof at trial.

As we noted, “‘[h]earsay’ is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). A written assertions is a “statement” under the hearsay

rule. Tenn. R. Evid. 801(a); see Franklin, 308 S.W.3d at 811. The temporary tag

contains a written statement, namely a name and address, and this written statement

reflects that the temporary tag for the Monte Carlo had been issued to Vance, who lived

at 3730 Fieldbrook Street, Memphis. See Franklin, 308 S.W.3d at 811. Based on the

testimony provided, we conclude that the State offered the information on the temporary

tag for its truth, namely that the tag for the Monte Carlo was issued to Vance, who lived

at 3730 Fieldbrook Street, Memphis and was hearsay.

We must now determine whether this statement was admissible under the

Tennessee Rules of Evidence. We believe that the temporary license tag could be

considered a public record under Rule 803(8), which provides that the following

information is not excluded by the hearsay rule:

Public Records and Reports. Unless the source of information or the

method or circumstances of preparation indicate lack of trustworthiness,

records, reports, statements, or data compilations in any form of public

offices or agencies setting forth the activities of the office or agency or

matters observed pursuant to a duty imposed by law as to which matters

- 21 -

there was a duty to report, excluding, however, matters observed by police

officers and other law enforcement personnel.

It also appears that the temporary license tag was self-authenticating under Rule 902(1),

(7), or (10). Accordingly, we conclude that the trial court did not err in admitting the

temporary tag.

As to Collins’ claim that the juvenile summons was hearsay, we note that the

defense has waived this issue by failing to make an objection on that ground at trial. See

Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be

granted to a party responsible for an error or who failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of an error.”); Tenn. R. Evid.

103(a)(1) (requiring a timely objection as a prerequisite to a finding of error based on the

trial court’s admission of evidence). Because Collins waived this issue, he is not entitled

to relief on this claim.

Alternatively, Collins argues that the admission of the juvenile summons violated

Rule 404(b). Evidence of a defendant’s character offered for the purpose of proving that

he or she acted in conformity with that character is inadmissible. See Tenn. R. Evid.

404(a). However, evidence of other crimes, wrongs, or bad acts may be admissible for

other purposes if this evidence satisfies the conditions in Rule 404(b).

Rule 404(b) states:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show

action in conformity with the character trait. It may, however, be

admissible for other purposes. The conditions which must be satisfied

before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the record

the material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear

and convincing; and

- 22 -

(4) The court must exclude the evidence if its probative value is outweighed

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Pursuant to the Advisory Commission Comment to Rule 404,

“evidence of other crimes should usually be excluded.” Tenn. R. Evid 404(b), Adv.

Comm’n Cmt. However, in exceptional cases, “where another crime is arguably relevant

to an issue other than the accused’s character,” such as “identity (including motive and

common scheme or plan), intent, or rebuttal of accident or mistake,” the evidence may be

admissible. Id.; see State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004) (stating that

evidence of other crimes, wrongs, or acts may be admissible if it establishes the

defendant’s motive, intent, guilty knowledge, identity of the defendant, absence of

mistake or accident, a common scheme or plan, completion of the story, opportunity, and

preparation).

If a trial court substantially complies with the requirements in Rule 404(b), the

court’s ruling will not be overturned absent an abuse of discretion. State v. Hawkins, 519

S.W.3d 1, 45 (Tenn. 2017). This court will find an abuse of discretion “only when the

trial court applied incorrect legal standards, reached an illogical conclusion, based its

decision on a clearly erroneous assessment of the evidence, or employed reasoning that

causes an injustice to the complaining party.” State v. Banks, 271 S.W.3d 90, 116 (Tenn.

2008) (citing Konvalinka v. Chattanooga–Hamilton County Hosp. Auth., 249 S.W.3d

346, 358 (Tenn. 2008)).

The record shows that the trial court substantially complied with Rule 404(b)’s

procedural requirements. We agree with the trial court that the juvenile summons had

substantial probative value because it helped establish Collins’ identity as one of the

perpetrators of the first degree felony murder. Although the juvenile summons was

slightly prejudicial because it showed that Collins had been written a ticket for several

misdemeanor driving offenses, its admission established that Collins was linked to the car

and assisted the jury in determining whether Collins was guilty of the charged offense.

For this reason, we conclude that the trial court did not abuse its discretion in admitting

the juvenile summons at trial.

III. Sufficiency of the Evidence. Collins argues that the evidence is insufficient

to sustain his conviction for first degree felony murder. Specifically, he contends that the

proof in this case only supports a conviction for facilitation of robbery. See T.C.A. § 39-

11-403(a) (“A person is criminally responsible for the facilitation of a felony, if, knowing

that another intends to commit a specific felony, but without the intent required for

criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial

assistance in the commission of the felony.”). Collins claims that the plan was for

- 23 -

Henderson to point the gun at the victim and take his keys, not shoot him, and that

although he knowingly furnished substantial assistance to Henderson by providing him

with a gun, he lacked the intent required for first degree felony murder under the theory

of criminal responsibility.

“Because a verdict of guilt removes the presumption of innocence and raises a

presumption of guilt, the criminal defendant bears the burden on appeal of showing that

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn.

1992)). “Appellate courts evaluating the sufficiency of the convicting evidence must

determine ‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e).

When this court evaluates the sufficiency of the evidence on appeal, the State is entitled

to the strongest legitimate view of the evidence and all reasonable inferences that may be

drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing

State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,

691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of

review for sufficiency of the evidence “‘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 Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the

credibility of the witnesses, determine the weight given to witnesses’ testimony, and

reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.

2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,

the jury determines the weight to be given to circumstantial evidence, and the inferences

to be drawn from this evidence and the extent to which the circumstances are consistent

with guilt and inconsistent with innocence are questions primarily for the jury. Dorantes,

331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When

considering the sufficiency of the evidence, this court “neither re-weighs the evidence nor

substitutes its inferences for those drawn by the jury.” Wagner, 382 S.W.3d at 297

(citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

As relevant in this case, felony murder is “[a] killing of another committed in the

perpetration of or attempt to perpetrate any . . . robbery[.]” T.C.A. § 39-13-202(a)(2).

The culpable mental state required for a felony murder conviction is the intent to commit

the underlying felony, namely robbery in this case. Id. § 39-13-202(b); see Wagner, 382

S.W.3d at 299. Robbery is an “intentional or knowing theft of property from the person

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of another by violence or putting the person in fear.” T.C.A. § 39-13-401(a). “A person

commits theft of property if, with intent to deprive the owner of property, the person

knowingly obtains or exercises control over the property without the owner’s effective

consent.” Id. § 39-14-103.

Collins argues that the proof in this case only supported a conviction for

facilitation of robbery. Therefore, we must determine whether the evidence supporting

his conviction satisfies the felony murder rule. The felony murder rule applies when the

killing is “‘done in pursuance of the unlawful act, and not collateral to it.’” Banks, 271

S.W.3d at 140 (quoting Rice, 184 S.W.3d at 663). In other words, “‘[t]he killing must

have had an intimate relation and close connection with the felony . . . and not be

separate, distinct, and independent from it.’” State v. Thacker, 164 S.W.3d 208, 223

(Tenn. 2005) (quoting Farmer v. State, 296 S.W.2d 879, 883 (Tenn. 1956)).

“A killing that precedes, coincides with, or follows the commission of an

underlying felony will be considered ‘in the perpetration of’ the underlying felony, so

long as there is a connection in time, place, and continuity of action.” Wagner, 382

S.W.3d at 299 (citing State v. Pierce, 23 S.W.3d 289, 294-97 (Tenn. 2000); State v.

Buggs, 995 S.W.2d 102, 106 (Tenn. 1999)). There should also be a causal connection

between the killing and the underlying felony. Buggs, 995 S.W.3d at 106 (citing Farmer,

296 S.W.2d at 884; State v. Severs, 759 S.W.2d 935, 938 (Tenn. Crim. App. 1988)).

Requiring this causal connection supports the deterrent effect of the felony murder rule

by excluding killings that are “collateral to and separate from the underlying felony.”

Pierce, 23 S.W.3d at 296.

In a felony murder case, the “intent to commit the underlying felony must exist

prior to or concurrent with the commission of the act causing the death of the victim.”

Buggs, 995 S.W.2d at 107. “[W]hether a defendant intended to commit the underlying

felony, and at what point the intent existed, is a question of fact to be decided by the jury

after consideration of all the facts and circumstances.” Wagner, 382 S.W.3d at 300

(citing Buggs, 995 S.W.2d at 107). As applicable in this case, “a jury may reasonably

infer from a defendant’s actions immediately after a killing that the defendant had the

intent to commit the felony prior to, or concurrent with, the killing.” Buggs, 995 S.W.2d

at 108 (citing State v. Addison, 973 S.W.2d 260, 266 (Tenn. Crim. App. 1997); State v.

Johnson, 661 S.W.2d 854, 861 (Tenn. 1983); State v. Holland, 860 S.W.2d 53, 59 (Tenn.

Crim. App. 1993)).

A defendant may be convicted of a crime as a principal actor or pursuant to the

theory of criminal responsibility. An individual is criminally responsible for an offense

committed by the conduct of another if “[a]cting with intent to promote or assist the

commission of the offense, or to benefit in the proceeds or results of the offense, the

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person solicits, directs, aids, or attempts to aid another person to commit the offense[.]”

T.C.A. § 39-11-402(2). Criminal responsibility is not a distinct crime but “a theory by

which the state may prove the defendant's guilt based on another person’s conduct.”

State v. Osborne, 251 S.W.3d 1, 16 (Tenn. Crim. App. 2007) (citing State v. Mickens,

123 S.W.3d 355, 389-90 (Tenn. Crim. App. 2003)). “[D]efendants convicted under a

theory of criminal responsibility are considered to be principal offenders, just as if they

had committed the crime themselves.” State v. Sherman, 266 S.W.3d 395, 408 (Tenn.

2008) (citing State v. Carson, 950 S.W.2d 951, 954 (Tenn. 1997)). In order to be

convicted under a theory of criminal responsibility, “the evidence must establish that the

defendant in some way knowingly and voluntarily shared in the criminal intent of the

crime and promoted its commission.” Dorantes, 331 S.W.3d at 386 (citing State v.

Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994); State v. Foster, 755 S.W.2d 846,

848 (Tenn. Crim. App. 1988)).

The evidence, when viewed in the light most favorable to the prosecution, is

sufficient to sustain Collins’ conviction for first degree felony murder. The proof

established that on March 9, 2014, Collins, Vance, and Henderson planned to rob the

victim of his Ford Mustang. Given the proof presented at trial, a reasonable jury could

have found that Collins had the intent to commit the robbery based on his own conduct or

the conduct of Vance or Henderson, for which Collins was criminally responsible.

Collins admitted that he planned to rob the victim, that he provided the gun used in the

offense, that he actively participated in the robbery, and that he fled from the scene in the

victim’s Mustang after the victim was shot. Collins’ statement to police was

corroborated by the statements from Vance and Henderson, as well as the documents

containing Collins’ identifying information, which placed him in Vance’s Monte Carlo

prior to the offense. Because a rational jury could have inferred from this proof that

Collins had the intent to commit the robbery prior to, or concurrent with, the killing of the

victim, we conclude that the evidence is sufficient to sustain Collins’ conviction.

IV. Sentencing of a Juvenile to Life Imprisonment. Finally, Collins argues that

his sentence of life imprisonment violates the prohibition against cruel and unusual

punishment in the United States and Tennessee Constitutions and that the trial court

abused its discretion in failing to dismiss his indictment on that basis. See U.S. Const.

amend. VIII; Tenn. Const. art. I, § 16. Noting the existence of shorter life sentences in

other states, Collins contends that his punishment is disproportionate to the crime

committed because he was a minor at the time of the offense and did not kill or intend to

kill the victim in this case. See Graham v. Florida, 560 U.S. 48, 69 (2010) (“It follows

that, when compared to an adult murderer, a juvenile offender who did not kill or intend

to kill has a twice diminished moral culpability.”).

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Collins asserts that his sentence has the effect of a sentence of life without parole

because statistics show that he will likely die in prison. He reiterates that he was

seventeen years old at the time of the offense and was subsequently convicted as charged

of first degree felony murder and sentenced to the minimum, mandatory sentence for this

offense, which is life imprisonment. See T.C.A. § 39-13-202(c). Pursuant to Code

sections 40-35-501(h)(1) and 40-35-501(i)(1), an individual must serve sixty years on a

sentence of life imprisonment prior to being eligible for release. He notes that if such an

individual receives all the available credits for good behavior, then that person is entitled

to a fifteen percent reduction on the sentence, which equates to service of fifty-one years

in prison. Id. § 40-35-501(i)(1); Vaughn v. State, 202 S.W.3d 106 (Tenn. 2006). Collins

claims that if he is released on the earliest date possible, he will be sixty-eight years old,

and that if he fails to earn any good conduct credits, he will be seventy-seven years old at

the time of his release. Relying on statistics regarding the average life expectancy of

incarcerated African-American males, Collins maintains that because he will spend his

entire life in prison, he has, in effect, been sentenced to life without parole. As to this

issue, we note that the United States Supreme Court has held that “while the Eighth

Amendment prohibits a State from imposing a life without parole sentence on a juvenile

nonhomicide offender, it does not require the State to release that offender during his

natural life.” Graham, 560 U.S. at 75.

Collins also argues that Tennessee’s sentencing scheme for first degree murder,

which prevents a trial court from sentencing a juvenile to anything less than life

imprisonment, violates Miller v. Alabama, 567 U.S. 460 (2012), by not allowing the

court to consider “the personal attributes that are peculiar to children.” He argues that his

sentence constitutes a cruel and unusual sentence because at the time he committed this

offense at the age of seventeen, his character was not as well formed as an adult’s

character, his traits were less fixed, and his actions were less likely to be evidence of

irretrievable depravity, assertions that he claims were supported by Dr. Walker’s

testimony. See id. at 471 (citing Roper v. Simmons, 543 U.S. 551, 570 (2005)). Collins

essentially maintains that because the mandatory sentencing scheme in Tennessee

precludes individualized sentencing for juveniles convicted of first degree murder, it

violates Miller. See id. at 483. However, as we will explain, Miller only mandates

individualized sentencing for juveniles sentenced to life without parole, not juveniles

sentenced to life imprisonment.

On February 22, 2016, the defense filed a motion for dismissal of the indictment

on the basis that Tennessee’s sentencing scheme for juveniles convicted of first degree

murder violated the prohibitions against cruel and unusual punishment under the United

States and Tennessee Constitutions. In a hearing immediately prior to Collins’ trial, the

trial court noted, “[C]ase law has come down from the Appellate Courts [dealing] with

that matter in the interim since that motion was filed. The defense responded that while

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the Court of Criminal Appeals had filed an opinion addressing a similar argument

regarding a different sentence, the Tennessee Supreme Court had not yet addressed the

issue raised in Collins’ motion to dismiss. The trial court, recognizing that it had denied

a similar motion in Martiness Henderson’s case, stated that it was also denying this

motion in Collins’ case.

In Miller, 567 U.S. at 479, the United States Supreme Court held that a mandatory

sentence of life imprisonment without parole for juvenile offenders violates the Eighth

Amendment’s prohibition against cruel and unusual punishment. The Court concluded

that while it did not bar the imposition of a sentence of life without parole for juvenile

homicide defendants, it did require that “a sentencer follow a certain process—

considering an offender’s youth and attendant characteristics—before imposing a

particular penalty.” Id. at 483.

Later, this court echoed Miller by recognizing that juvenile defendants convicted

of first degree murder may still be sentenced to life without parole. See Charles Everett

Lowe-Kelley v. State, No. M2015-00138-CCA-R3-PC, 2016 WL 742180, at *9 (Tenn.

Crim. App. Feb. 24, 2016) (noting that “Miller did not hold that a juvenile can never be

sentenced to life without the possibility of parole” before upholding the juvenile

defendant’s consecutive life sentences as constitutional), perm. app. denied (Tenn. June

23, 2016); Cedrick Dickerson v. State, No. W2013-01766-CCA-R3-PC, 2014 WL

3744454, at *5 (Tenn. Crim. App. July 28, 2014) (upholding a juvenile’s sentence of life

without parole because “the trial court provided the exact consideration that the Supreme

Court called for in Miller”), perm. app. denied (Tenn. Nov. 19, 2014).

Moreover, this court has consistently rejected the claim that a juvenile’s

mandatory life sentence, which requires service of fifty-one years before release,

constitutes an effective sentence of life without parole in violation of Miller. See Martez

D. Matthews v. State, No. M2015-02422-CCA-R3-PC, 2016 WL 7395674, at *4 (Tenn.

Crim. App. at Nashville, Dec. 21, 2016), perm. app. denied (Tenn. Apr. 13, 2017);

Charles Everett Lowe-Kelley, 2016 WL 742180, at *8; Billy L. Grooms v. State, No.

E2014-01228-CCA-R3-HC, 2015 WL 1396474, at *4 (Tenn. Crim. App. Mar. 25, 2015),

perm. app. denied (Tenn. July 21, 2015), cert. denied, 136 S. Ct. 1216 (Feb. 29, 2016)

State v. Kayln Marie Polochak, No. M2013-02712-CCA-R3-CD, 2015 WL 226566, at

*34 (Tenn. Crim. App. Jan. 16, 2015), perm. app. denied (Tenn. May 14, 2015); Cyntoia

Denise Brown v. State, No. M2013-00825-CCA-R3-PC, 2014 WL 5780718, at *21

(Tenn. Crim. App. Nov. 6, 2014), perm. app. denied (Tenn. May 15, 2015); Floyd Lee

Perry, Jr. v. State, No. W2013-00901-CCA-R3-PC, 2014 WL 1377579, at *5 (Tenn.

Crim. App. Apr. 7, 2014), perm. app. denied (Tenn. Sept. 18, 2014); Charles Damien

Darden v. State, No. M2013-01328-CCA-R3-PC, 2014 WL 992097, at *11 (Tenn. Crim.

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App. Mar. 13, 2014), perm. app. denied (Tenn. Sept. 18, 2014). As the concurring

opinion in Zachary Everett Davis recently explained, though:

[A]lthough Tennessee’s sentencing scheme allows for possible release of a

defendant convicted of first degree murder after the service of fifty-one

years, it is only in the rare instance, if ever, that a juvenile so sentenced

would be released back into society. Even if the judge or jury decides that

the features of the juvenile or the circumstances of the homicide require a

sentence other than life without parole, the effect of the sentence is still the

same. The juvenile has no meaningful opportunity for release whether you

name the sentence imprisonment for life or imprisonment for life without

the possibility of parole, and the juvenile will likely die in prison. “While

the logical next step may be to extend protection to these types of

sentences, this is not the precedent which now exists” in this State. Floyd

Lee Perry, Jr., v. State, No. W2013-00901-CCA-R3-PC, 2014 WL

1377579, at *4 (Tenn. Crim. App. Apr. 7, 2014), perm. app. denied (Tenn.

Sept. 18, 2014)].

No. M2016-01579-CCA-R3-CD, 2017 WL 6329868, at *26 (Thomas, J., concurring).

Because the sentence in this case is not the functional equivalent of a sentence of life

imprisonment without parole, Collins is not entitled to relief.

Finally, we address Collins’ claim that his sentence is disproportionate to the

crime committed. When a defendant in a non-capital case makes a proportionality

challenge, this court must determine, as a threshold question, whether a comparison of

the sentence to the offense committed “leads to an inference of gross disproportionality.”

State v. Harris, 844 S.W.2d 601, 603 (Tenn. 1992). In making this determination, we can

assuredly conclude that a comparison of the sentence in this case to Collins’ crime does

not lead to an inference of gross disproportionality. Accordingly, we conclude he is not

entitled to relief.

CONCLUSION

Based upon the aforementioned authorities and reasoning, the judgment of the trial

court is affirmed.

_________________________________

CAMILLE R. MCMULLEN, JUDGE

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