State of Tennessee v. Michael Freeman

05/24/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 18, 2018

STATE OF TENNESSEE v. MICHAEL FREEMAN

Appeal from the Criminal Court for Knox County

No. 103488 Steven W. Sword, Judge

No. E2018-00778-CCA-R3-CD

The Defendant, Michael Freeman, appeals his second degree murder conviction, alleging

that (1) the trial court improperly denied his motion to suppress his police statement

because he made an unequivocal request for a lawyer; (2) that the evidence was

insufficient to support his conviction; and (3) that the trial court erred by issuing a flight

instruction to the jury.1 Following our review of the record and the applicable authorities,

we conclude that the Defendant’s issues do not entitle him to relief. Accordingly, the

judgment of the trial court is affirmed.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and ALAN E. GLENN, JJ., joined.

Susan E. Shipley, Knoxville, Tennessee, for the Appellant, Michael Freeman.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Senior

Assistant Attorney General; Charme P. Allen, District Attorney General; and Leslie

Nassios and Hector Sanchez, Assistant District Attorneys General, for the appellee, State

of Tennessee.

OPINION

FACTUAL BACKGROUND

On April 15, 2014, a Knox County grand jury charged the Defendant with first

degree felony murder. See Tenn. Code Ann. § 39-13-202. Prior to trial, the Defendant

1

For the sake of clarity, we have reordered the issues from how they are presented in the Defendant’s

brief.

filed a motion to suppress his recorded statement given at the police department. In it, he

argued that he “explicitly invoked his rights to the assistance of counsel to three separate

law enforcement officers” and that these requests were not “scrupulously” honored. A

hearing was held on the motion. The trial court thereafter entered a written order denying

the motion, concluding that the Defendant “never made an unequivocal invocation of his

rights” and that he “made a voluntary and knowing waiver of all of his Miranda rights.”2

In its order, the trial court examined, in detail, each instance when the Defendant made

any reference to an attorney. After the denial of his motion to suppress, the Defendant

proceeded to a jury trial, where the following evidence was presented.

Around 1:00 a.m. on January 22, 2014, the Defendant called 911 to report “a

crime” and requested that he be picked up by an officer. Initially, the Defendant would

not provide any more details. The Defendant eventually told the operator that he stabbed

a friend who was attacking him, that it was “self-defense,” that he did not know if the

other person was alive or not, and that he left the scene because he was afraid the person

would get a gun and retaliate. The Defendant provided his name, his general description,

and his location, and he advised that he would be waiting for an officer to arrive to take

him to the victim’s location.

Knoxville Police Department (“KPD”) Officer James Lockmiller testified that he

arrived at the Defendant’s residence on South Dewey Road. The officers knocked on the

front door, and the Defendant “started to come outside.” According to Officer

Lockmiller, the Defendant came out of the residence with an object in his hand. The

Defendant was ordered to drop the object, and he complied. The object was a

pocketknife that was wrapped in a toboggan, and the victim’s blood was found on the

knife. Officer Lockmiller testified that the Defendant appeared to “have an injury”; the

Defendant had a cut on his hand that required bandaging.

The Defendant “said that he was involved in a stabbing incident because he had

been attacked.” The Defendant was unsure of the victim’s address but agreed to show

them the location. The Defendant was placed in a police cruiser and provided “turn-by-

turn” directions to the victim’s residence, which was “[r]oughly three blocks” away.

KPD Officer John Martin testified that, when he entered the victim’s residence, he

first observed “the victim lying on the floor just inside the doorway.” Also, Officer

Martin observed a large amount of blood “directly around the victim” and noted that “[i]t

appeared to have dried” already in some places. Officer Martin performed a “protective

sweep” of the victim’s residence, opining that “it was a very well kept residence.”

According to Officer Martin, he did not “see any sort of disorder or a sign of a struggle

2

See Miranda v. Arizona, 384 U.S. 436 (1966).

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anywhere else” inside the home. There were also four vehicles parked outside, and car

keys were found near the victim.

The Defendant was transported to the KPD. While waiting to speak with the lead

investigator, Amy Jinks, the Defendant explained to Investigator Brian Moran that,

before he stabbed the victim with the victim’s pocketknife, the victim had struck him in

the mouth and kept threatening to kill him. The Defendant showed Investigator Moran

his lip. The Defendant claimed that the victim had “flipped” and that he acted in self-

defense. When Investigator Jinks arrived at the police station, she spoke with the

Defendant after giving him Miranda warnings. The Defendant told Investigator Jinks

that he had known the Defendant for about three or four years and that they spent time

together often. The Defendant relayed that the victim would sometimes drink too much

and become insulting.

The Defendant told Investigator Jinks that he had visited the victim three times

that day and that, earlier in the day, they drank vodka and watched television together.

The Defendant claimed that he had asked the victim to hold $600 in cash for him.

According to the Defendant, when he returned later in the evening, the victim was still

drunk and began threatening him. In addition, the Defendant said that he knew the victim

had a gun and brass knuckles inside the house. The Defendant claimed that the victim

punched him in the mouth, so he picked up a “little bitty” pocketknife that was on the

table in the den. The Defendant ultimately admitted that he stabbed the victim and took

cash from the victim’s pocket. He acknowledged that the victim did not have any

weapons on his person at the time of the stabbing. The Defendant described that “he

shoved [the victim] down and he stabbed him in the back of the neck, and he held him

until he quit moving.” The Defendant said that he left the residence with the knife

wrapped in a toboggan and drove a few blocks to his residence before calling the police.

KPD crime scene technician Stephanie Housewright testified that she examined

the victim’s residence immediately following the victim’s death. While she did not

observe any brass knuckles inside the victim’s home, she admitted that she did not look

underneath the recliner. Ms. Housewright testified that she found an empty liquor bottle

and a change purse containing several crack cocaine rocks next to the victim’s recliner in

the den. Ms. Housewright also noted that she saw boxed home security systems and

some tire rims inside the home. She photographed the residence, agreeing that an object

shown to her in one of the photographs of an upstairs bedroom “[p]otentially” looked like

a firearm.

In addition, after the Defendant arrived at the police station, Ms. Housewright

photographed “clean, crisp 20-dollar bills” that were taken off the Defendant’s person.

The Defendant was also photographed, and those photos were shown to the jury. The

victim’s blood was also discovered on the Defendant’s clothing.

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The victim’s cellphone was examined. It was determined that an incoming call

was made and answered at 11:12 p.m. on January 21, 2014.

Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox County,

performed the autopsy of the victim, determining that the cause of death was “multiple

stab wounds,” five at least, and that the manner of death was homicide. The first wound

she documented was a “complex stab wound on the chin” that went through the lower lip

and “into the oral cavity or inside the mouth.” She opined that it was possible that this

was two separate stab wounds due to the complexity of the wound, but she could not say

for certain. The second wound was on the right lower neck, where the knife penetrated

the victim’s thyroid gland. The third wound was a superficial cut. The fourth wound

entered the left side of the neck, went through the victim’s thyroid gland, penetrated his

larynx, and cut his main carotid artery. According to Dr. Mileusnic-Polchan, the victim

“would bleed quite profusely” from this wound, which she categorized as a “deadly

wound.” The fifth wound was a stab wound to the “nuchal region” at the back of the

victim’s head, where the blade went between the first and second vertebrae and

penetrated the victim’s cervical spinal cord, which “would cause partial paralysis of the

extremities.” Dr. Mileusnic-Polchan observed that this stab wound was downward,

whereas the other four to the victim’s front side were inflicted in an upward manner.

The victim’s blood alcohol level was determined to be .32 percent at the time of

his death. Moreover, the victim tested positive for cocaine metabolites, Valium, and a

“veterinary drug . . . used to deworm cows.” Dr. Mileusnic-Polchan believed that the

victim had used “cocaine sometime within a couple hours of death[.]”

Dr. Mileusnic-Polchan reviewed the photographs of the crime scene and the

information provided by one of her field investigators. Her investigator described the

victim’s body “as being still warm and flaccid[,] meaning that rigidity [had] not set in and

that lividity was not prominent yet.” Dr. Mileusnic-Polchan was able to observe from her

review of the photographs that “the blood was drying . . . on the exposed surfaces that

were not under the body,” that “it was already dry on the . . . coffee table[,]” and that “it

had penetrated and . . . diffused through the carpet.” She maintained that, “on [the

victim’s] clothing items, the blood was starting actually to separate into kind of [a] serum

in the blood clot” and that it had “already diffused all over the rest of the shirt and then

remained in that position even the next day[.]” She stated that, “obviously, some time

ha[d] to pass for all of those processes to take place.” Moreover, she opined that “several

hours” had passed between the victim’s death and when his body was discovered and

photographed, but she could not provide a precise determination of the time of death.

Dr. Mileusnic-Polchan assented that the victim’s wounds were consistent with his

being involved “in a struggle[.]” She could not determine, “to a reasonable degree of

medical certainty[,]” the sequence in which the victim’s wounds were inflicted. Dr.

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Mileusnic-Polchan was able to opine that the victim was “low down on the floor” when

he was stabbed in the neck. She further stated the nature of the victim’s wound to the

back of the head was consistent with the Defendant’s being behind the victim or “above

him if he’s already down” and stabbing him. Moreover, the “jagged nature of some [the

victim’s] wounds in the facial and neck area” were also “consistent with . . .

movement[.]”

The victim’s daughter, Cashauna Lattimore, testified that her father lived alone,

received monthly social security disability, and participated in “the numbers” or “illegal

number bracket.” According to Ms. Lattimore, her father frequently carried cash on his

person and hid cash “throughout the residence[.]” Ms. Lattimore confirmed that her

father was a daily drinker, but she claimed that “[h]e was always able to function . . .

[e]xcept for when he drank something that was not his regular brand of vodka.” She

additionally acknowledged that her father had used cocaine in the past. Ms. Lattimore

had no knowledge of her father’s possessing any guns or brass knuckles immediately

before his death, but he did have “several pocketknives on the side table in his den.”

According to Ms. Lattimore, her father no longer carried a gun because “he had gotten in

trouble . . . with a weapons charge several years” prior, so “he got rid of that gun[.]” She

claimed that she had not seen him with a gun since 2014.

Ms. Lattimore testified that she had known the Defendant for “maybe two or

three” years prior to her father’s death, that she was aware the Defendant and her father

were friends, and that she had would often see the Defendant at her father’s house when

“their friendship was strong.” However, at some point, the Defendant’s and her father’s

friendship had “weakened” due to a disagreement, and the Defendant did not visit.

According to Ms. Lattimore, the Defendant had begun “coming back” around to her

father’s house “closer in time to [her] father’s death[.]”

Ms. Lattimore stated that she visited her father’s home the day after his death.

While there, she did not find the cash her father kept inside a pillowcase or any brass

knuckles. Ms. Lattimore reported that a burglary occurred at the residence several days

later. Ms. Lattimore also admitted that there were several females who were “out stealing

things and bringing [them to her father] for him to fence.” She was aware that this

happened “on a regular basis[.]”

The victim’s cousin, Avery Maurice Jack, testified that the victim “played the

numbers every day[.]” Mr. Jack identified two calendars on the wall above the victim’s

desk that showed several sequences of numbers on specific days. The last entry was

January 21, 2014. Mr. Jack also testified that the victim kept cash hidden around his

house and that the victim did not have a gun or brass knuckles.

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Michael Shadden, another cousin of the victim’s, also testified. Mr. Shadden

identified the rims in the victim’s home and testified that he sold those to the victim

“because they wouldn’t fit on [his] car.” Mr. Shadden further stated that the victim

“never carried a gun” and that he had never seen brass knuckles in the house.

Tessa Freeman, the Defendant’s sister, testified that she saw the Defendant in the

driveway of the home they shared that evening between 10:00 and 10:30 p.m. However,

when she left again around 11:30 or 11:45 p.m., the Defendant was gone. According to

Ms. Freeman, he was still not home when she returned about thirty minutes later.

Angela McAfee was one of the women who routinely supplied the victim with

stolen goods. Ms. McAfee spoke with the victim in the “daytime” on January 21, 2014,

the day of his death, because she “needed money.” After this conversation, she and a

friend, Savanna Holloway, went to steal some candy, toboggans, and batteries.

According to Ms. McAfee, when they arrived at the victim’s house, it was during the day,

and they had a conversation with him in the dining room. The Defendant was present.

Ms. McAfee said that the victim offered the Defendant some of the stolen items, but he

refused them. Ms. McAfee testified that, during this conversation, the Defendant “pulled

out a little bitty . . . pocketknife and stood by” the victim. The victim instructed the

Defendant to put the knife away. Ms. McAfee stated that everyone was being “friendly”

and laughing.

Ms. Holloway also testified. She recalled that this visit to the victim’s house

occurred around 10:00 or 11:00 p.m. Ms. Holloway testified that, during this

conversation, the Defendant was “very agitated” and “was pacing back and forth” with a

“knife in his hand[.]” While the Defendant made Ms. Holloway “nervous,” he was not

threatening anyone.

The Defendant called Kelly Johnson, records custodian and fraud specialist at

ORNL Federal Credit Union, who provided information on a checking account belonging

to the Defendant’s wife, Heather Lange. According to Ms. Johnson, on January 21, 2014,

there was an ATM withdrawal of $600 at 2:29 p.m. from the account, and an additional

withdrawal from another ATM at 4:29 p.m. in the amount of $163.

The Defendant’s wife then testified. Ms. Lange stated that only she and her

husband had access to the debit card and PIN number for her account. She denied that

she made any withdrawals from the account on January 21, 2014, claiming that she “was

home all day.” She did not recall why her husband made these withdrawals that day.

However, she did recall the Defendant’s returning home that evening “terrified,” holding

a knife in his hand, and saying that the victim “was gonna kill” him.

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Following the conclusion of the proof, the jury found the Defendant guilty of the

lesser-included offense of second degree murder. See Tenn. Code Ann. § 39-13-210.

The trial court sentenced the Defendant to twenty-one years’ imprisonment. The

Defendant timely appealed.

ANALYSIS

On appeal, the Defendant argues (1) that he made an unequivocal request for

counsel during his interrogation and that the trial court therefore erred in denying his

motion to suppress the statements he made to police following his invocation; (2) that the

evidence was insufficient to support his jury conviction; and (3) that the issuance of a

flight instruction to the jury was error. We will address each of the Defendant’s issues in

turn.

I. Motion to Suppress

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

his statements made to police after he unequivocally invoked his right to counsel.

Specifically, the Defendant asserts that “[t]he video recording of [his] interactions at the

[KPD] clearly establish that he was explicitly asking for an attorney before either of the

investigators came into the interrogation room.” According to the Defendant, “[s]ome of

[his] requests were equivocal (“I feel like I might need a lawyer,”) but, others were

emphatic: “I’m going to call a lawyer,” “Just tell them to bring a lawyer up here,” and “I

am going to call a lawyer.” He surmises that his “unequivocal requests for the assistance

of counsel were not scrupulously honored[.]” The State responds that the trial court

correctly allowed the Defendant’s confession to be admitted into evidence because he

“never made an unequivocal and unambiguous request for counsel.” The State continues,

“even if this [c]ourt were to find that such a request had been made, the [D]efendant

would not be entitled to relief because he immediately reinitiated conversation with

officers and because he subsequently made a knowing and voluntary waiver of his

rights.”

A. Suppression Hearing

The video recording of the Defendant’s interrogation at the police station was

entered into evidence at trial. After arriving at the police station, the Defendant was

taken to an interview room. The lead investigator, Amy Jinks, was at the crime scene, so

the Defendant had to wait in the interview room alone for some time. During this time,

he spoke with Investigator Brian Moran and other unnamed officers. Investigator Moran

explained to the Defendant that the investigator handling the case would be there shortly

to speak to him about what happened. Investigator Moran made it clear that he was not

the investigator on the case and that someone else would speak to the Defendant about it.

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He further stated that they could not ask him any questions about what happened until

they had gone over his rights with him. The Defendant continued to make statements

about what happened. The Defendant did make multiple references to an attorney

throughout his interactions with the police that night. The Defendant’s sister, Tessa

Freeman, was also apparently sitting near the interrogation room.

When Investigator Jinks finally arrived and entered the interview room, the

Defendant immediately began to explain what happened. Investigator Jinks stopped him

and said she first needed to explain his rights to him. She then went over his Miranda

rights, and the Defendant executed a written waiver. The Defendant said, “I understand

my rights. I don’t have anything to hide. . . . It was self-defense.” The Defendant also

stated that he wanted to speak with the police but that he did not want to be

“railroad[ed].” The first question by Investigator Jinks occurred at 3:01 a.m.

The Defendant testified that, on January 21, 2014, he was on several prescription

medications for “real bad anxiety, some kind of a PTSD, and . . . mood disorder.” He

admitted that he was also drinking vodka on January 21, 2014. The Defendant said that

he told the police he wanted a lawyer as soon as they encountered him the first time at the

front door of his residence. He also said that he wanted to speak with the police, but with

an attorney present; that was why he called 911 in the first place. According to the

Defendant, the officers continually ignored his requests for a lawyer. The Defendant

frequently asked when and if he would be released from custody. When asked if he

mentioned an attorney because he was “just kind of tired of waiting” for Investigator

Jinks, he said, “No. It was more than that. . . . Like I said, I had a lot of issues going on

at one time.”

B. Relevant Law

The United States and Tennessee Constitutions protect a suspect from “being

compelled to give evidence against himself.” State v. Berry, 141 S.W.3d 549, 576 (Tenn.

2004) (citing U.S. Const. amend. V; Tenn. Const. art. I, § 9); see also State v. Turner, 305

S.W.3d 508, 515 (Tenn. 2010). When a defendant is in custody and subject to

interrogation, the police must first inform him of his Fifth Amendment rights in order for

his confession to be admissible as substantive evidence in the trial of the matter. See

Miranda v. Arizona, 384 U.S. 436 (1966). Pursuant to Miranda, law enforcement officers

are required to warn a person prior to custodial interrogation that he has the right to

remain silent, that anything he says can be used against him in a court of law, that he has

the right to the presence of an attorney, and that, if he cannot afford an attorney, then one

will be appointed for him prior to any questioning if he so desires. Id. at 479. A

defendant may waive his rights under Miranda if such waiver is voluntary, knowing, and

intelligent. State v. Echols, 382 S.W.3d 266, 280 (Tenn. 2012). The State bears the

burden of proving by a preponderance of the evidence that the defendant waived his

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Miranda rights. State v. Climer, 400 S.W.3d 537, 564 (Tenn. 2013) (quoting Berghuis v.

Thompkins, 560 U.S. 370, 384 (2010)).

Furthermore, the United States Supreme Court generally stated in Miranda that the

right to counsel is invoked when an individual “indicates in any manner and at any stage

of the process that he wishes to consult with an attorney before speaking[.]” 384 U.S. at

444-45. However, eight years later in Davis v. United States, the United States Supreme

Court adopted a significantly narrower standard for invoking a right to counsel under the

Fifth Amendment when it held that “[i]nvocation of the Miranda right to counsel

‘requires, at a minimum, some statement that can reasonably be construed to be an

expression of a desire for the assistance of an attorney.’” 512 U.S. 452, 458-59 (1994)

(quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). “[G]eneric and equivocal

statements made by a person who is still in the decision making process” do not invoke

the right to counsel. State v. Saylor, 117 S.W.3d 239, 246 (Tenn. 2003) “When a suspect

invokes the right to counsel, police must cease questioning until counsel is present” or the

suspect initiates further conversation with the police. Id. (citing Miranda, 384 U.S. at

444-45; Edwards v. Arizona, 451 U.S. 477 (1981); State v. Stephenson, 878 S.W.2d 530,

548 (Tenn. 1994)). Once the suspect invokes his right to counsel, any later statement

made by a defendant as a consequence of interrogation by police must be suppressed.

Edwards, 451 U.S. at 487. The issue of whether a suspect’s request for an attorney was

unequivocal is a mixed question of law and fact that is subject to de novo review.

Climer, 400 S.W.3d 537, 556 (Tenn. 2013) (citing Turner, 305 S.W.3d 508, 514-15

(Tenn. 2010)).

In Davis, the Supreme Court stated that, although it is a good policy for law

enforcement to clarify whether a suspect has actually asked for an attorney when the

suspect’s request is ambiguous, it “decline[d] to adopt a rule requiring officers to ask

clarifying questions.” 512 U.S. at 461. The Court explained, “If the suspect’s statement

is not an unambiguous or unequivocal request for counsel, the officers have no obligation

to stop questioning him.” Id. at 461-62. Accord Saylor, 117 S.W.3d at 246 (“The

standard for a valid invocation of the right to counsel is the same under both [a]rticle I,

[s]ection 9 [of the Tennessee Constitution] and the Fifth Amendment.”).

C. Standard of Review and the Trial Court’s Ruling

On appellate review of suppression issues, the prevailing party “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 the evidence.” State v.

Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23

(Tenn. 1996)). Questions about “the assessment of witness credibility, the weight and

value of evidence, and the resolution of evidentiary conflicts are entrusted to the trial

court” as the trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008) (citing

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State v. Scarborough, 201 S.W.3d 607, 615 (Tenn. 2006)). When the trial court “makes

findings of fact in the course of ruling upon a motion to suppress, those findings are

binding on appeal unless the evidence in the record preponderates against them.” Id.

(citing State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007)). Conversely, a trial court’s

conclusions of law along with its application of the law to the facts are reviewed de novo

without any presumption of correctness. Id. (citing State v. Hayes, 188 S.W.3d 505, 510

(Tenn. 2006)). In reviewing a trial court’s ruling on a motion to suppress, an appellate

court may consider the evidence presented both at the suppression hearing and at the

subsequent trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

In its order denying the Defendant’s motion to suppress, the trial court made

extensive findings of fact and conclusions of law reviewing each statement made by the

Defendant prior to Miranda warnings. The trial court analyzed as follows:

1. The first instance for which the court finds credible proof that the

[D]efendant made any reference to an attorney occurred after he was placed

in the interview room prior to the arrival of Investigator Jinks. He caught

the attention of an officer and said, “If they gonna charge, I’m just gonna

call . . . I just going to call me a layer and just tell him what . . .” The

officer interrupted and said the investigator was coming right now. The

defendant replied, “Well still, might just call me a lawyer because . . .”

Again, the officer said, “you talk to him about that,” and then addressed

another officer about the [D]efendant talking about an attorney.

The court does not find this to be an unequivocal request for counsel

in the context of this case. It is important to note that the [D]efendant is the

one who called the police to report the incident. He showed no reluctance

at the beginning to speak with the police about what happened. To the

contrary, it appears that is exactly what he wanted to do. After this initial

statement to the officer, Investigator Moran stepped in to ask the

[D]efendant what was going on. It was clear that Investigator Moran had

more authority than the first officer. When Moran asked him, “What’s

going on buddy?” The [D]efendant did not mention anything about an

attorney. Instead, he said, “Just tell me what y’all need from me and I . . .

how long I gotta be before I can bond out of jail.” Moran made it clear that

they didn’t know what had happened yet. The [D]efendant then said, “I

know it’s going to be a minute but I’m gonna tell you exactly what

happened.” This is completely contradictory to any claim that he wanted to

speak to an attorney before telling the police what happened.

2. A few minutes later, the [D]efendant again got the attention of

another officer and stated, “I’m gonna need to call a lawyer, man.” The

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court finds that this was a statement not designed to invoke his right to

counsel, but was rather an expression of his desire that the process move

along faster. As reflected below in his subsequent statements, the

[D]efendant was using the threat of calling a lawyer to prod the

investigators into speaking to him and moving the investigation along. The

court does not find this to be an unequivocal request for counsel in the

totality of the circumstances. The officer did not ask the [D]efendant any

questions. Instead he said the investigator would be back in just a minute.

It is clear from the context that this officer was telling the [D]efendant that

the issue of counsel would need to be addressed with one of the

investigators.

3. The [D]efendant then addressed his sister who was outside the

interview room and said, “And I call me a lawyer . . . I might go ahead and

call me a lawyer.” This clearly was not directed toward the police, but

further evinced his equivocation on whether he “might” call a lawyer. It

shows that he was still in the decision making process of what he should

do.

4. The [D]efendant then addressed another officer by saying, “I

didn’t want to get a lawyer involved . . .” Again, this is not an unequivocal

request for an attorney, but showed that the [D]efendant was conflicted on

whether or not to call a lawyer. In fact, this statement reveals the

defendant's desire not to call an attorney and to “tell what happened.” He

was expressing frustration at how long he was having to wait to tell his

story.

5. The officer then tried to explain to the [D]efendant why it was

taking so long and the [D]efendant stated, “I called y’all, you know what

I’m saying?” The court takes this to mean that the [D]efendant wanted to

speak with the police from the beginning. He then said, “I mean I called

y’all but it seems like I’m going to have to call me a lawyer . . . anyway.”

Once again, the court finds that this is not an unequivocal request for an

attorney, but rather an expression that he might change his mind and call an

attorney instead of speaking to the police. The officer told the [D]efendant

that that was something he would need to address with the investigator.

6. The [D]efendant then told the officer that he “wanted to get this

over with . . . and call me a lawyer cause I called y’all. . . . I'll give y’all his

knife, his toboggan. Got what I had on . . .” The court does not find this to

be an unequivocal request for an attorney. It appears from the context that

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the [D]efendant was again expressing frustration in the delay, not a desire

to speak to counsel.

7. At this point, Investigator Moran returns to the room and gets

some more information regarding the [D]efendant’s identity. The

[D]efendant then states, “Do I need to call a lawyer before I talk to y’all?”

This is not an unequivocal request for an attorney. It is yet additional

evidence that the [D]efendant has not decided if he wants to speak with an

attorney or follow through on his initial plan to tell the police what

happened. Investigator Moran gave the appropriate response and said that

it was up to him and that he would be read his rights.

8. The [D]efendant went on to reiterate that he called the police

himself and that he had nothing to hide—meaning that he was willing to

tell what happened. He next states, “I feel like I might need a lawyer.”

Once again, this is not an unequivocal request for an attorney. The

[D]efendant is further revealing the inner struggle he is having over

whether or not he should call a lawyer or speak to the police. Moran told

him that he would have an opportunity to tell his side of the story “if you

choose to talk to us.” He made it clear to the defendant that he would have

the option not to speak to the investigator.

9. The [D]efendant went on to spontaneously tell the officer what

happened and that he acted in self-defense. He then stated, “Do I need to

get a lawyer or what?” As before, this is not an unequivocal request for

counsel. Moran told him again that was a decision he would need to make

himself. Again, the [D]efendant made statements about what happened

without Investigator Moran asking any questions. The [D]efendant is

demonstrating a continued decision making process on whether or not to

speak with the police.

10. After waiting a while longer, the [D]efendant left the interview

room again. He can be heard saying on the way back into the room, “I

gotta talk to a lawyer.” This is the closest the [D]efendant comes to

requesting to speak to counsel. However, based on the totality of the

circumstances, the court does not find this to be an unequivocal request for

counsel. The [D]efendant had been expressing a desire to tell what

happened to the police all night from the point he first called 911. He was

clearly frustrated in how long it was taking for someone from the police to

talk to him about what happened and that his sister was at the police station.

No one from the police asks the [D]efendant any questions at this point.

They simply tell him to wait. The next thing that happens is that the

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[D]efendant, once again, reaches out to Investigator Moran and asks him to

step into the room. He asks that the door be closed and says, “What do you

want to hear? I mean I want to go home. I want to tell the truth. I

defended myself. I called the police.” He then goes on to explain what

happened. This action convinces the court that the [D]efendant was not

making an unequivocal request for counsel in this latest statement. It

appears he was using the threat of speaking to an attorney as a means of

getting the police to go ahead and talk to him about what happened instead

of having to wait any longer. At the end of his story, Investigator Moran

again tells him several times that he can’t ask him any questions about what

happened until he was advised of his rights. The [D]efendant went on to

make unsolicited statements about what occurred.

11. When Investigator Jinks arrives, she enters the room with the

[D]efendant. The [D]efendant immediately begins to tell Investigator Jinks

what happened before she has a chance to talk to him about his rights.

After stating what he did, the [D]efendant then said, “I know I could talk to

a lawyer and probably get out tonight.” This statement shows that the

[D]efendant has known all along that he could speak to an attorney and end

his interactions with the investigators at any point in the evening. The fact

that he didn’t shows he never actually wanted to speak to an attorney and is

further support of the court’s findings that he failed to make an unequivocal

request for counsel.

The trial court detailed that, at this point, “Investigator Jinks read the [D]efendant

his Miranda rights, including his right to counsel. The [D]efendant acknowledged that he

understood those rights and was willing to make a statement. He again affirmed his

desire to tell the officer what happened. The interview began.” The trial court

determined that the Defendant “made a voluntary and knowing waiver of all of his

Miranda rights.”

The trial court additionally noted that, “[t]oward the end of this interview, the

[D]efendant reiterated, ‘I know I coulda had a lawyer here and blah, blah, this and blah,

blah that.’” According to the trial court, this statement “further show[ed] that the

[D]efendant clearly understood that he could consult with an attorney without answering

any questions from the police and that he had no intention of invoking his right to

counsel.” Finally, the trial court observed that,

[a]fter Investigator Jinks left the interview room, the [D]efendant

summoned another officer into the room. He said he wanted someone to

talk to. He again spontaneously stated that he stabbed the victim in self-

defense. A short time later, Investigator Moran re-enters the room as they

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are preparing to transport the [D]efendant to the jail. Once again, the

[D]efendant gives an unsolicited account of defending himself.

D. Application

The trial did not find the Defendant credible when he testified at the suppression

hearing that he told the police he wanted an attorney during the initial encounter or that

he wanted an attorney present during questioning. Moreover, from our examination of

the record and our own review of the video recording, we agree with the trial court that

the Defendant’s statements did not rise to the level of an unequivocal invocation of the

Defendant’s right to counsel. The Defendant’s statements indicate that he was still in the

decision making process; they do not clearly request counsel. See Saylor, 117 S.W.3d at

246. They merely indicate that he was seeking to expedite the process in order to get

released sooner. Indeed, this situation is similar to others in which our courts have found

the accused did not unequivocally and unambiguously invoke his right to counsel.

The trial court set forth the relevant caselaw and provided pertinent examples in

support of its conclusion. The trial court determined that the Defendant did not

unequivocally invoke his right to counsel, concluding that the Defendant’s “multiple

references to an attorney to be akin to statements that have previously been found to be

equivocal statements regarding the right to counsel and not an actual request.” The trial

court cited to the following cases in support of its conclusion: Davis, 512 U.S. at 462

(“Maybe I should talk to a lawyer”); Turner, 305 S.W.3d at 508, 511, 520 (“Um, how

quick will my lawyer get here?”); Saylor, 117 S.W.3d at 243-44 (“Well . . . I guess it

don’t matter until I can get a lawyer present.”; “I’m supposed to have a lawyer though,

don’t I?”; “I have to have a lawyer present, I reckon. Before you ask me. That’s the

story, isn’t it?”; “You have to have a lawyer present before questioning.”; and “I might

need a lawyer because somebody might try to accuse me of something I didn’t do.”);

State v. Mitchell, 137 S.W.3d 630, 636-37 (Tenn. Crim. App. 2003) (“Do you think I

need a lawyer?”); State v. Michael James Bell, No. E2008-01499-CCA-R3-CD, 2010

WL 3612751, at *24 (Tenn. Crim. App. Sept. 17, 2010) (“I think I need to talk to a

lawyer.”); State v. Adam Sanders, No. M2005-02185-CCA-R3-CD, 2006 WL 3516210,

at *8 (Tenn. Crim. App. Dec. 6, 2006) (“I guess I need a lawyer, don’t I?”); State v.

James Robert Ledford, No. E1999-00917-CCA-R3-CD, 2000 WL 1211312, at *9 (Tenn.

Crim. App. Aug. 28, 2000) (“Don’t I need to talk to a lawyer?”); State v. James Clayton

Young, Jr., No. 01C01-9605-CC-00208, 1998 WL 258466, at *12 (Tenn. Crim. App.

May 22, 1998) (“I’m sorry, I’m just wondering if I should have a lawyer.”); State v. John

M. Ake, No. 01C01-9603-CC-00094, 1997 WL 311908, at *2 (Tenn. Crim. App. June 6,

1997) (“I probably need to get a lawyer, don’t I?”)). See also State v. Lavonte

Dominique Simmon, No. E2016-01582-CCA-R3-CD, 2018 WL 1381786, at *25 (Tenn.

Crim. App. Mar. 19, 2018) (agreeing “with the trial court that the [d]efendant’s inquiry—

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“Do you know when is that? . . . You know when is that? . . . When the lawyer can

come?”—was not an unequivocal invocation of the [d]efendant’s right to counsel), perm.

app. denied (Tenn. July 19, 2018). The evidence does not preponderate against the trial

court’s findings of fact in this regard, and its ultimate legal conclusions were well-

founded.

In addition to the cases correctly cited by the trial court, we note that the

Defendant’s statements contrast with those previously deemed sufficiently clear to invoke

the right to counsel. See, e.g., Turner, 305 S.W.3d at 522 (holding that the defendant’s

later statement, “Get me a lawyer,” was an unequivocal invocation of his right to

counsel); State v. Koffman, 207 S.W.3d 309, 318 (Tenn. Crim. App. 2006) (concluding

that the “[d]efendant’s request to call [a judge and a federal defender who previously

represented defendant] prior to the initiation of questioning was an unequivocal request

for the assistance of counsel”); State v. Michael Lee McCormick, No. E2003-02689-

CCA-R9-DD, 2004 WL 2583903, at * 11 (Tenn. Crim. App. Nov. 15, 2004) (finding the

statements, “I’d be willing to [cooperate], I’d like to have a lawyer at this point,” and,

“I’ll do anything, but I still think I, you know, like to have a lawyer with me, and I’ll be

glad to [cooperate],” to be clearly and unambiguously requesting counsel); State v.

Tidwell, 775 S.W.2d 379, 387 (Tenn. Crim. App. 1989) (determining that the statement,

“I’d like to call a lawyer before I discuss that,” to be an unequivocal invocation).

Acordingly, we conclude that the trial court did not err by denying the Defendant’s

motion to suppress.

II. Sufficiency of the Evidence

The Defendant challenges the sufficiency of the convicting evidence supporting

his second degree murder conviction. Specifically, the Defendant maintains that there

was insufficient evidence presented to establish that he “committed an intentional killing

and that his actions were reasonably certain to cause a homicide where the weapon used

was a small pocketknife, and [he] sought assistance for the victim by reporting the

confrontation to authorities.” The Defendant further surmises that “[t]he incident . . .

appears to involve a foolish, drunken argument between two friends.” In addition, he

notes that his actions—committing “a homicide with a small folding pocketknife that he

opportunistically found at the victim’s residence”; availing “himself of [a weapon] that

would not be considered to have a great degree of inherent deadliness”; calling 911;

leading officers to the victim’s location thereby allowing them to provide aid; and asking

during his interrogation “what the victim had said about the incident”—were “not

consistent with [his] being aware that his conduct was reasonably certain to cause death.”

The State counters that the evidence was sufficient, contending that “[t]he jury could

reasonably conclude that stabbing an individual five different times in the head and neck

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area—and severing both the carotid artery and spinal cord—was reasonably certain to

cause death.”

An appellate court’s standard of review when a defendant questions the

sufficiency of the evidence on appeal 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). This court does not reweigh the evidence; rather, it presumes that the jury

has resolved all conflicts in the testimony and drawn all reasonable inferences from the

evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness

credibility, conflicts in testimony, and the weight and value to be given to evidence were

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury’s verdict.” Id.; see State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). The standard of proof is the same whether the evidence

is direct or circumstantial. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

Likewise, appellate review of the convicting evidence “is the same whether the

conviction is based upon direct or circumstantial evidence.” Id. (quoting State v. Hanson,

279 S.W.3d 265, 275 (Tenn. 2009)). The duty of this court “on appeal of a conviction is

not to contemplate all plausible inferences in the [d]efendant’s favor, but to draw all

reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d

60, 67 (Tenn. 2011).

Second degree murder is statutorily defined as the “knowing killing of another.”

Tenn. Code Ann. § 39-13-210(a)(1). Our supreme court has determined that second

degree murder is a “result of conduct” offense. See State v. Brown, 311 S.W.3d 422,

431-32 (Tenn. 2010); State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). Here, a person

acts knowingly “when the person is aware that the conduct is reasonably certain to cause

the result.” Tenn. Code Ann. § 39-11-302(b). Whether a defendant acts knowingly is a

question of fact for the jury. See State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim.

App. 2000). The jury may infer a defendant’s mental state from “the character of the

assault, the nature of the act and from all the circumstances of the case in evidence.” Id.

at 105; see also Brown, 311 S.W.3d at 431.

In addition, the Defendant claimed self-defense at trial. When a defendant relies

upon a theory of self-defense, the State bears the burden of proving that the defendant did

not act in self-defense. State v. Sims, 45 S.W.3d 1, 10 (Tenn. 2001). Further, it is well-

settled that whether an individual acted in self-defense is a factual determination to be

made by the jury as the sole trier of fact. See State v. Goode, 956 S.W.2d 521, 527

-16-

(Tenn. Crim. App. 1997); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993).

“Encompassed within that determination is whether the defendant’s belief in imminent

danger was reasonable, whether the force used was reasonable, and whether the

defendant was without fault.” State v. Thomas Eugene Lester, No. 03C01-9702-CR-

00069, 1998 WL 334394, at *2 (Tenn. Crim. App. June 25, 1998) (citing State v. Renner,

912 S.W.2d 701, 704 (Tenn. 1995)). It is within the prerogative of the jury to reject a

claim of self-defense. See Goode, 956 S.W.2d at 527. Upon our review of a jury’s

rejection of a claim of self-defense, “in order to prevail, the defendant must show that the

evidence relative to justification, such as self-defense, raises, as a matter of law, a

reasonable doubt as to his conduct being criminal.” State v. Clifton, 880 S.W.2d 737,

743 (Tenn. Crim. App. 1994).

In the light most favorable to the State, the evidence established that the victim

suffered at least five stab wounds to his face, neck, and the back of the head. The

victim’s carotid artery and spinal cord were severed. Both women who were present in

the victim’s house while the Defendant was there testified that they saw the Defendant

wielding a knife. According to the medical examiner, the evidence was consistent with

the Defendant’s being behind the victim and stabbing him in the back of the head. At the

time the victim was stabbed in the neck, he was “low down on the floor.” The Defendant

admitted to stabbing the victim, even referring to the knife during his interrogation as the

murder weapon. The knife was found in the Defendant’s possession, and the Defendant

admitted to drinking alcohol that day.

Moreover, the Defendant told Investigator Jinks that “he shoved [the victim] down

and he stabbed him in the back of the neck, and he held him until he quit moving.” The

victim did not have any defensive wounds, and there was no evidence of a weapon on or

near the victim at the time of the stabbing. The jury, as was its prerogative, rejected the

Defendant’s claim of self-defense. A reasonable juror could have rejected the

Defendant’s claim of self-defense and concluded the Defendant acted knowingly by

being aware that stabbing the victim with a pocketknife five different times in the head

and neck area was reasonably certain to cause death. See, e.g., State v. Douglas V.

Killins, No. M2004-00341-CCA-R3-CD, 2005 WL 94422, at *3-5 (Tenn. Crim. App.

May 2, 2005) (rejecting a sufficiency challenge under similar facts that included stabbing

the victim with a pocketknife and a defense of mutual combat or self-defense). The

evidence is sufficient to support the Defendant’s conviction.

III. Flight Instruction

The Defendant argues that the trial court erred by “allowing the jury to consider a

flight instruction where the proof established that the Defendant contacted the authorities

to report the incident and led them to the victim’s location.” According to the Defendant,

“[t]here is no indication he attempted to flee, hide out[,] or otherwise evade the

-17-

authorities.” He notes that he “drove the few blocks to his residence and called 911”; that

he “waited until the police arrived, holding the homicide weapon in a cap”; and that he

“was arrested without incident and went with the police to the scene.” Furthermore, he

contends that the improper instruction was prejudicial because “it led jurors to believe he

should be held responsible merely because he was not present at the scene of the

argument at the time of his arrest.” The State replies that “the trial court correctly

included a jury instruction on flight because the Defendant both left the scene and

subsequently evaded police for some time.” Moreover, assuming error, the States asserts

that “the flight instruction . . . had a minimal impact on the jury’s decision,” and any error

should be considered harmless.

A defendant in a criminal case “has a right to a correct and complete charge of the

law, so that each issue of fact raised by the evidence will be submitted to the jury on

proper instructions.” State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); see State v.

Leath, 461 S.W.3d 73, 105 (Tenn. Crim. App. 2013). When reviewing jury instructions

on appeal to determine whether they are erroneous, this court must “review the charge in

its entirety and read it as a whole.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).

A jury instruction is considered “prejudicially erroneous,” only “if it fails to fairly submit

the legal issues or if it misleads the jury as to the applicable law.” Id. Because the

propriety of jury instructions is a mixed question of law and fact, the standard of review

is de novo with no presumption of correctness. Carpenter v. State, 126 S.W.3d 879, 892

(Tenn. 2004).

The trial court can only charge the jury on flight if there is sufficient evidence to

support the instruction. Berry, 141 S.W.3d at 588. There is sufficient evidence to support

a jury charge on flight when there is proof the defendant left the scene of the crime and of

a “subsequent hiding out, evasion, or concealment in the community, or a leaving of the

community for parts unknown.” State v. Burns, 979 S.W.2d 276, 289-90 (Tenn. 1998)

(quoting State v. Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989). The subsequent

hiding out, evasion, or concealment requirement can be satisfied by evidence from which

a jury might infer that a defendant committed this act. See State v. Joshua Hill-Williams,

No. W2015-01743-CCA-R3-CD, 2017 WL 1907735, at *12 (Tenn. Crim. App. May 9,

2017); State v. Terrance Wilks, No. W1999-00279-CCA-R3-CD, 1999 WL 1097832, at

*4 (Tenn. Crim. App. Nov. 22, 1999). “Any contradictory evidence that serves to rebut

the [S]tate’s proof merely raises a question for the jury to resolve.” Payton, 782 S.W.2d

at 498. The defendant may rebut evidence of flight by a “credible explanation of some

motive other than guilt.” Hall v. State, 584 S.W.2d 819, 821 (Tenn. Crim. App. 1979).

In the present case, the State requested that the court include an instruction on

flight. The Defendant objected, arguing that there was insufficient evidence to support

such an instruction and noting that he was “the one who called 911.” After consideration,

-18-

the court included the instruction, stating that “there [was] sufficient proof to fairly raise

the issue” because the Defendant “clearly left the scene of the accident” and because

there was “a question about how quickly he called [911], so . . . that could be the

subsequent evading.” The trial court thereafter instructed the jury as follows:

The flight of a person accused of a crime is a circumstance which,

when considered with all the facts of the case, may justify an inference of

guilt. Flight is the voluntary withdrawal of oneself for the purpose of

evading arrest or prosecution for the crime charged. Whether the evidence

presented proves beyond a reasonable doubt that the [D]efendant fled is a

question for your determination.

The law makes no precise distinction as to the manner or method of

flight; it may be open, or it may be a hurried or concealed departure, or it

may be a concealment within the jurisdiction. However, it takes both a

leaving the scene of the difficulty and a subsequent hiding out, evasion, or

concealment in the community, or a leaving the community for parts

unknown, to constitute flight.

If flight is proved, the fact of flight alone does not allow you to find

that the [D]efendant is guilty of the crime alleged. However, since flight by

a defendant may be caused by a consciousness of guilt, you may consider

the fact of flight, if flight is so proven, together with all the other evidence

when you decide the guilt or innocence of the [D]efendant. On the other

hand, an entirely innocent person may take flight and such flight may be

explained by proof offered, or by the facts and circumstances of the case.

Whether there was flight by the [D]efendant, the reasons for it, and

the weight to be given to it, are questions for you to determine.

See Tenn. Prac. Pattern Jury Instr. T.P.I.--Crim. 42.18 (16th ed.).

Even a brief evasion of authorities can support the giving of the flight instruction.

Payton, 782 S.W.2d at 498. Moreover, our supreme court has held that “[a] flight

instruction is not prohibited when there are multiple motives for flight” and that “[a]

defendant’s specific intent for fleeing a scene is a jury question.” Berry, 141 S.W.3d at

589. Here, the State presented evidence, albeit circumstantial, that the Defendant fled the

scene, went home, and remained concealed there for one to two hours before calling 911.

The Defendant acknowledged that he left the scene and “drove the few blocks to his

residence.” According to the Defendant, he had shoved the victim to the floor and

stabbed him in the back of the neck, and the victim was no longer moving when he left

the residence. The Defendant’s sister testified that she saw the Defendant in the

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driveway of the home they shared home between 10:00 and 10:30 p.m., but when she left

again around 11:30 or 11:45 p.m., the Defendant was gone. The victim’s cellphone was

examined, and it was determined that an incoming call was made and answered at 11:12

p.m. on January 21, 2014. The Defendant’s wife testified that the Defendant returned

home that evening “terrified,” holding a knife in his hand. The Defendant did not call

911 until around 1:00 a.m., and initially, he did not provide any details other than to

report “a crime.”

There was testimony that the victim’s blood had already started to dry when the

officers arrived at the victim’s residence. Dr. Mileusnic-Polchan observed that “the

blood was drying . . . on the exposed surfaces that were not under the body,” that “it was

already dry on the . . . coffee table[,]” and that “it had penetrated and . . . diffused through

the carpet.” She maintained that, “on [the victim’s] clothing items, the blood was starting

actually to separate into kind of [a] serum in the blood clot” and that it had “already

diffused all over the rest of the shirt and then remained in that position even the next

day[.]” Moreover, she stated that “obviously, some time ha[d] to pass for all of those

processes to take place” and opined that “several hours” had elapsed between the victim’s

death and when his body was discovered and photographed. Accordingly, we are

constrained to agree with the trial court that there was sufficient evidence for a rational

juror to infer that the Defendant sought to conceal himself in the community and, only

after some deliberation, decided to alert the authorities and turn himself in to the police.

See, e.g., State v. Smith, 893 S.W.2d 908, 918 (Tenn. 1994) (finding circumstantial

evidence of an immediate flight because the facts led to a reasonable inference that the

defendant had seen the flashing lights of a passing police car, which was responding to

another call nearby, and concealed himself and left the scene); Hill-Williams, 2017 WL

1907735, at *12-13 (concluding that, although the defendant called 911 after he shot the

victim, there was sufficient evidence to support a flight instruction because the defendant

also left the scene of the shooting and went home, but did not stay there, and only later

turned himself in to law enforcement after learning his twin brother was in custody for

the shooting).

Moreover, the trial court instructed the jury that “flight alone does not allow you

to find that the defendant is guilty of the crime charged” and “an entirely innocent person

may take flight and such flight may be explained by proof offered, or by the facts and

circumstances of the case.” The Defendant was free to rebut the flight theory by offering

his explanation for his departure and emphasizing that he called the authorities and

ultimately led them to the victim’s location. Further, given the overwhelming proof of

the Defendant’s guilt, any error in giving the flight instruction was harmless. See, e.g.,

Smith, 893 S.W.2d at 918 (concluding “any error as to the flight instruction” was

harmless given the “overwhelming proof of [the defendant’s] guilt”). This issue does not

entitle to the Defendant to relief.

-20-

CONCLUSION

In accordance with the foregoing, we conclude that the trial court did not err in

denying the Defendant’s motion to suppress, that the evidence was sufficient to support

the Defendant’s conviction, and that issuance of a flight instruction was proper. Because

the Defendant’s issues do not entitle him to relief, the judgment of the trial court is

affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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