State of Tennessee v. Quincy Lamont Collins

04/21/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 2, 2021 Session

STATE OF TENNESSEE v. QUINCY LAMONT COLLINS

Appeal from the Circuit Court for Madison County

No. 20-67 Roy B. Morgan, Jr., Judge

___________________________________

No. W2020-01566-CCA-R3-CD

___________________________________

Defendant, Quincy Lamont Collins, was indicted by the Madison County Grand Jury for

one count each of attempted first degree premeditated murder, aggravated assault,

especially aggravated robbery, employing a firearm during the commission of a dangerous

felony, being a convicted felon in possession of a firearm, and employing a firearm during

the commission of a dangerous felony having been previously convicted of a dangerous

felony. Following a jury trial, Defendant was convicted as charged, and he received an

effective sentence of 31 years. In this appeal as of right, Defendant contends that the trial

court erred by denying his motion to suppress his statement to police; that the trial court

should have suppressed the gun located as a result of information obtained during

Defendant’s interrogation; that the trial court erred by instructing the jury on flight; and

that his convictions for attempted first degree premeditated murder and aggravated assault

violate double jeopardy. Following our careful review of the record, the arguments of the

parties, and the applicable law, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined.

M. Todd Ridley, Assistant Public Defender, Appellate Division, Franklin, Tennessee (on

appeal); Jeremy Epperson, Jackson, Tennessee (at trial) for the appellant, Quincy Lamont

Collins.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant

Attorney General; Jody S. Pickens, District Attorney General; and Bradley Champine,

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

OPINION

On September 9, 2019, an arrest warrant was issued alleging that Defendant shot in

the chin and upper chest the victim, Jessica Graves. Defendant had been involved in a

relationship with the victim. Defendant turned himself in to police and gave a statement

to Jackson Police Department (“JPD”) Sergeant Nick Donald on September 10.

Motion to Suppress

Defendant filed a pretrial motion to suppress his statement to police, arguing that he

asserted his rights to remain silent and to have an attorney present and that he was coerced

into providing a statement by promises of leniency. The State filed a response.

A recording of Defendant’s police interview was the only evidence introduced at

the suppression hearing. The interview lasted approximately one hour and twenty minutes.

Defendant entered the interview room wearing leg shackles and handcuffs. Defendant’s

leg shackles were removed and he was given a bottle of water. Sergeant Donald entered

the room five minutes after Defendant, and he removed Defendant’s handcuffs.

Defendant stated that he was not under the influence of any drugs or alcohol and

that he was able to read and write. Sergeant Donald read Defendant his Miranda rights

and asked if he understood his rights. The following exchange occurred:

Defendant: Yeah, I understand that, but I don’t agree with it, ‘cause I don’t

know what you’re talking about. So I ain’t going to say I don’t want no

lawyer at this time, but I’ll listen to you, though. But I ain’t going to answer

your questions.

Sergeant Donald: Do you understand? I’m not saying you have to give a

statement.

Defendant: Oh, okay. No, you read it all.

Sergeant Donald: Do you understand this [form]?

Defendant: I understand what you’re saying.

Sergeant Donald: I’m not saying you have to give me a statement.

Defendant: Oh, okay.

-2-

Sergeant Donald: I’m just saying, do you understand your rights?

Defendant: Mmm hmmm.

Sergeant Donald: Okay. That’s all this is saying.

Sergeant Donald: I’m not trying to get you to sign no statement. This is, like

I said, is your rights. That’s what this form is saying. I’m going to put the

date and time and everything on here that I read you this and have you sign

it and I’ll sign it and we understand it, and we can move on.

Defendant then signed the form. Sergeant Donald confronted Defendant with Ms.

Graves’ allegation that Defendant shot her. Defendant told Sergeant Donald that he was

at work on the night Ms. Graves was shot. He explained that he went to his car to get his

cigarettes but returned right away. He denied that he went to Ms. Graves’ apartment that

night. Sergeant Donald again told Defendant that Ms. Graves said Defendant shot her.

Sergeant Donald told Defendant that Ms. Graves made a police report three days prior to

the shooting that Defendant had threatened to shoot her. Defendant told Sergeant Donald,

“We were playing with each other when she said that, so she just doing all this lying. I

don’t want to talk about dat [that] no more.” Sergeant Donald then asked Defendant who

he thought shot Ms. Graves, and Defendant responded, “I don’t know and I don’t care.”

Sergeant Donald commented on Defendant’s lack of remorse, stating: “When a

person doesn’t show any kind of remorse, or anything like that, it will go into how people

look at you, how you’re perceived. . . . That’s just my look on it, my experience with it.

Defendant then stated:

I need a lawyer. I ain’t going to show you no – I can’t sit here and show you

no remorse and keep talking, and you putting this on me. I need a lawyer

then, is what it sounds like. I ain’t no damn dummy either, keep talking to

you. . . . So I just ask you what this is, like, what you fixin’ to charge me

with?

Sergeant Donald responded that Defendant was being charged with attempted

murder. Defendant asked Sergeant Donald what he thought he would “get out of attempted

murder,” and Sergeant Donald told him that the judge would make that decision.

Defendant then began to talk about his treatment in jail. He said that he had been “treated

like s**t,” that he had asked for “PC,” or protective custody, and that a man who shot him

in the back was also at the jail. Defendant continued to speak about remorse and whether

he had remorse and then told Sergeant Donald, “Don’t nobody know what the f**k

happened ‘cause it was something somebody else said.” Sergeant Donald then asked

-3-

Defendant, “What do you think happened?” Defendant said he did not know because he

was at work and he doubted that his supervisor saw him leave. Sergeant Donald told

Defendant that police “did this all the time” and that people who do not “even acknowledge

what they did or have remorse, then they tend to be given a stricter punishment.”

A short time later, Defendant asked, “Okay, I do want to ask you all, before we

[unintelligible], are we through with this? ‘Cause y’all are lying and I [unintelligible] and

I gotta find out about a lawyer.” Defendant then complained again about his treatment in

jail and said that he felt like his life was in danger there. Sergeant Donald told Defendant

that he would see if he could get Defendant moved.

Without any prompting by Sergeant Donald, Defendant then returned to the subject

of the allegations against him and said, “dude don’t work that shift” about a co-worker who

said he saw Defendant leave work. Sergeant Donald told Defendant, “I’m not calling you

a liar or anything like that.” He told Defendant that he would “listen without judging” if

Defendant wanted “to elaborate and explain some things.” Then the following exchange

occurred:

Defendant: I really wanted to come in here and have a lawyer talk to y’all.

I really didn’t want to say s**t to y’all.

Sergeant Donald: Okay. That’s your choice, and I respect that, so.

Defendant: No, I want to tell you for real. I really didn’t want to say nothing

to y’all.

Sergeant Donald: Okay, well.

Defendant: I’m mad though.

Sergeant Donald: At the situation?

Defendant: No . . . I’m mad ‘cause I came up here f**king yesterday and I

could have died somewhere else.

Defendant told Sergeant Donald that his “life [was] gone” because police were

“blaming this” on him. Defendant again told Sergeant Donald that his supervisor did not

see him leave work. Sergeant Donald then told Defendant that Ms. Graves said Defendant

shot her. Defendant told Sergeant Donald that people “put a lot of s**t” on him that he did

not know how to “clear up.” Sergeant Donald informed Defendant that he would meet

with the district attorney and present the evidence police had and they would “take it from

-4-

there.” Defendant began another discussion about his treatment in the jail. Sergeant

Donald told him he would “get [him] a ride in a minute” and “meet [him] outside to

smoke.”

Sergeant Donald left the room and Defendant turned off the lights and adjusted the

video camera. Sergeant Donald returned to the room approximately seven minutes later

and gave Defendant a cigarette. While Defendant smoked the cigarette, he told Sergeant

Donald that he had been suicidal and that he had been treated poorly by “the system” for

20 years. He told Sergeant Donald that he “laid in the f**king bushes” all day Saturday

and gestured like he was pointing a gun to his head. He said that he changed his mind

because he loved his children and wanted to spend one last night with them.

Defendant eventually told Sergeant Donald that he turned himself in because he

loved Ms. Graves and he “didn’t mean to do it.” He said that he called Ms. Graves at 1:00

a.m. to ask if he could come to her apartment. She let him inside, and he went to sleep on

her couch. He stated that Ms. Graves woke him up and told him to go back to work. Ms.

Graves was sitting in her bed, and he had his gun to his head. Defendant said Ms. Graves

reached for her gun and he shot her. He said that she jumped over to where her gun was,

and he fired again. Defendant said “he ain’t mean to” because he only intended to do what

he “always said” about committing suicide. Defendant said that he took Ms. Graves phone,

gun, and purse and that he thought Ms. Graves was dead. When he saw on the news that

she lived, he “was proud of her.”

Sergeant Donald asked Defendant where he put his gun, and Defendant told him

that he got rid of it. He said that he did not want to reveal where he put his gun because it

would get him in more trouble. Defendant eventually told Sergeant Donald that he threw

the gun in the woods near a cemetery in Humboldt where his mother was buried. He said

that he had searched the woods for seven hours looking for the gun but was only able to

find the clip.

In a written order denying Defendant’s motion to suppress, the trial court found that

Defendant “never clearly and unambiguously asserted his right to cease questioning and

have an attorney present” and that “no coercion of the Defendant by any officer took place,

and . . . no officer made any express or implied promises of leniency or engaged in any

action that could reasonably be construed to overbear the Defendant’s free will.”

Trial

Jessica Graves, the victim, dated Defendant for one year prior to the incident. She

testified that they had broken up in the two weeks prior to September 7, 2019. On that

date, at around 1:00 a.m., Ms. Graves awoke to hear Defendant “beating on [her] window

-5-

and knocking on [her] door and calling [her] phone[.]” Defendant asked if he could sleep

there. Ms. Graves testified that Defendant was “abusive” and “a manipulator.” A few days

prior to the shooting, Defendant had threatened to shoot Ms. Graves. She testified that she

woke up to find Defendant “sitting on the bed,” and he said, “‘I should shoot you.’” Ms.

Graves reported the incident to police, but she did not ask to press charges or obtain an

order of protection. She testified, “I never really thought in a million years that he would

actually try to kill me.” When Defendant arrived at her apartment on the night of the

shooting, Ms. Graves thought he was just there to sleep.

Defendant fell asleep on the couch. Ms. Graves woke Defendant at around 5:30

a.m. and told him that it was time for him to leave for work. She then went back to her

bedroom to watch TV. She testified,

I was watching TV, and when I turned my head, he was right in my face, and

I just felt something, you know on my arm. It was hot. And I remember

falling back on the bed, and I don’t remember what he did. I didn’t know he

shot me in my chin and – or whatever. And I remember looking at him, and

he was taking my purse, my car keys and my cellphone, and I had a 9-

millimeter, and he was taking all of that. So I closed my eyes and acted like

I was dead and waited until I heard him close the door, and I jumped up and

I ran to a bunch of people house until one lady let me in, and I went

unconscious after that.

Ebony Cheairs testified that she heard a knock on her door at around 5:00 a.m.

When she went to the door, Ms. Graves said, “‘I’m your neighbor. Can you please help

me? I’ve been shot.’” Ms. Cheairs pulled Ms. Graves inside and called 9-1-1. Ms. Graves

told Ms. Cheairs that her boyfriend had shot her.

JPD Officer Ryan Brisco responded to a call of a “suspicious situation regarding a

female knocking on other neighbors’ door requesting help.” He was flagged down in front

of the victim’s neighbor’s house. When he entered the house, he saw Ms. Graves “laying

on the kitchen floor surrounded by a puddle of blood.” Officer Brisco testified that Ms.

Graves was “in and out of consciousness.” He observed two gunshot wounds, one to the

victim’s chin and one to the victim’s shoulder.

JPD Officer Lance Wright responded to Ms. Graves’ apartment and observed blood

on the kitchen door and “large amounts of blood” leading from the kitchen through the

living room and into the bedroom. In Ms. Graves’ bedroom, Officer Wright saw “a very

large amount of blood on the mattress and the sheets that covered the mattress.” He also

noticed that “a disturbance had occurred in the bedroom.” Officer Wright found two .45

-6-

caliber shell casings and a bloodied projectile in the bedroom. Officer Wright

photographed the crime scene, and the photographs were admitted into evidence.

Sergeant Donald had an arrest warrant issued for Defendant’s arrest on the Monday

morning following the shooting. Sergeant Donald interviewed Defendant on September

10, 2019. A video recording of the interview was played for the jury.1 Sergeant Donald

testified that Defendant initially denied having any knowledge about the shooting. He

testified that Defendant ultimately admitted that he shot Ms. Graves when she reached for

her gun. Defendant also admitted that he took Ms. Graves’ purse, keys, phone, and gun.

He stated that he thought she was dead and that he took her belongings and his gun to the

cemetery in Humboldt where his mother was buried.

Based on Defendant’s statement, Sergeant Donald and other officers retrieved

Defendant’s gun, a .45 caliber handgun, from a wooded area in the cemetery. An

examination of the gun revealed that the two shell casings recovered from Ms. Graves

bedroom were fired from the gun. Police were not able to locate Ms. Graves’ stolen

property.

As a result of her injuries, Ms. Graves suffered facial paralysis, limited mobility in

her arm, a scar on her chest, and “metal in [her] eye” that caused it to “run[] all the time.”

Ms. Graves also testified that she was deaf in her left ear and that her injuries were

permanent.

After proper inquiry, Defendant waived his right to testify. Defendant offered no

additional proof.

Based on the evidence presented at trial, the jury convicted Defendant as charged.

The trial court imposed an effective sentence of 31 years’ incarceration. Defendant now

appeals.

Analysis

Motion to Suppress Defendant’s Statement

Defendant contends that the trial court erred by allowing his statement to Detective

Donald to be admitted into evidence. He argues that the trial court should have suppressed

the statement because he invoked his right to remain silent and his right to counsel during

the interview. The State responds that Defendant did not unambiguously and

1

Portions of the recording were redacted by agreement between the parties.

-7-

unequivocally invoke his right to remain silent or his right to counsel and that even if the

trial court erred by admitting the statement into evidence, any such error was harmless.

Both the state and federal constitutions guarantee an accused the right to the

assistance of counsel and the right against self-incrimination. The Fifth Amendment to the

United States Constitution guarantees that “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.” Article I, section 9 of the Tennessee

Constitution similarly provides that “in all criminal prosecutions, the accused . . . shall not

be compelled to give evidence against himself.” Statements made during the course of a

custodial police interrogation are inadmissible at trial unless the State establishes that the

defendant was advised of his right to remain silent and his right to counsel and that the

defendant then waived those rights. Miranda v. Arizona, 384 U.S. 436, 471-75 (1966); see

also Dickerson v. United States, 530 U.S. 428, 444 (2000); Stansbury v. California, 511

U.S. 318, 322 (1994). A defendant’s rights to counsel and to remain silent may be waived

as long as the waiver is made voluntarily, knowingly, and intelligently. Miranda, 384 U.S.

at 478; State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992). However, during the

course of an interrogation, if the defendant clearly and unequivocally invokes either his

right to silence or his right to counsel, the interrogation must immediately cease. See

Berghuis v. Thompkins, 560 U.S. 370, 381 (2010); Davis v. United States, 512 U.S. 452,

459 (1994). “The fundamental purpose of the Court’s decision in Miranda was ‘to assure

that the individual’s right to choose between speech and silence remains unfettered

throughout the interrogation process.’” Connecticut v. Barrett, 479 U.S. 523, 528 (1987)

(emphasis omitted) (quoting Miranda, 384 U.S. at 469).

Defendant acknowledges that he voluntarily waived his Miranda rights. He argues,

however, that he invoked his rights to remain silent and to counsel and that Sergeant Donald

did not scrupulously honor his rights by immediately ceasing the interrogation. Once a

suspect unequivocally invokes his right against self-incrimination, “the admissibility of

statements obtained after the person in custody has decided to remain silent depends under

Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’”

Michigan v. Mosley, 423 U.S. 96, 104 (1975) (quoting Miranda, 384 U.S. at 474, 479). If

an accused makes an unequivocal request for an attorney, all interrogation must cease

“unless the accused himself initiates further communication, exchanges, or conversations

with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). “Invocation 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.’” Davis , 512

U.S. at 459 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)); see also State v.

Huddleston, 924 S.W.2d 666, 669 (Tenn. 1996). “[I]f a suspect makes a reference to an

attorney that is ambiguous or equivocal in that a reasonable officer in light of the

circumstances would have understood only that the suspect might be invoking the right to

counsel,” questioning need not cease, nor must an officer clarify the suspect’s intention

-8-

regarding invocation of the right to counsel. Davis, 512 U.S. at 459, 459 (emphasis in

original).

“Whether an individual’s request for counsel is equivocal or unequivocal is a mixed

question of law and fact that is ultimately subject to de novo review.” State v. Climer, 400

S.W.3d 537, 556 (Tenn. 2013). Our review of the question in this appeal is entirely de

novo, with no deference to the trial court’s factual findings, because the trial court’s factual

determinations were based upon the video recording of Defendant’s interrogation, which

is included in the record on appeal. See id. (citing State v. Turner, 305 S.W.3d 508, 514

(Tenn. 2010) (applying de novo review because the trial court’s determination was based

on video evidence included in the appellate record). Finally, a conviction may be affirmed,

notwithstanding a nonstructural constitutional error, if the State proves beyond a

reasonable doubt that the error “did not contribute to the verdict obtained.” State v.

Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (internal quotation marks omitted).

Turning to the interrogation in this case, Defendant asserts that he invoked his right

to remain silent when he told Sergeant Donald, “I don’t want to talk about this no more.”

The State makes the clear distinction, however, that Defendant actually said, “I don’t want

to talk about dat [that] no more,” which the State asserts was made in reference to Ms.

Graves’ having reported to the police that Defendant threatened to shoot her three days

prior to the shooting. The State notes that Defendant was “clearly annoyed” by the

allegation that Ms. Graves had interpreted their conversation as a threat and reported it to

police. Defendant told Sergeant Donald that they had been playing around and that Ms.

Graves was “just doing all this lying.” Defendant then told Sergeant Donald that he did

not want to talk “about dat” anymore.

We agree with the State in this instance that Defendant did not indicate a desire to

cease speaking altogether. Rather, Defendant’s statement that he did not want to talk about

“dat” or “that” anymore indicated Defendant’s desire to terminate the discussion of a

particular subject. See State v. Nathan Bernard Lalone, No. E2016-00439-CCA-R3-CD,

2017 WL 2297653, at *12 (Tenn. Crim. App. May 25, 2017) (“[G]enerally statements have

not been found to be a clear and unambiguous invocation of the right to remain silent when

they . . . ‘indicate only the suspect’s desire to avoid answering a particular question or to

avoid speaking about particular themes[.]’”), no perm. app. filed (citing State v. Rogers,

760 N.W.2d 35, 58-60 (Neb. 2009)). We conclude that Defendant’s declaration that he

“didn’t want to talk about dat no more” was not a clear and unequivocal expression that he

wished to remain silent.

Defendant asserts that he expressed a desire for counsel on five occasions during

the interview. He concedes that two of the five requests “may have been somewhat

equivocal.” Defendant asserts that he “expressed reluctance about proceeding without an

-9-

attorney” when he told Sergeant Donald, “Yeah, I understand [the waiver form], but I don’t

agree with it, ‘cause I don’t know what you’re talking about, so I ain’t gonna say I don’t

want no lawyer at this time, but I’ll listen to you.” Defendant also acknowledges that he

equivocated in his statement, “I really wanted to come in here and have a lawyer talk to

y’all.”

Defendant contends, however, that he unequivocally and unambiguously invoked

his right to counsel on three other occasions. He asserts that he invoked his right to counsel

when he twice said, “I need a lawyer.” The State contends that, taken in context,

Defendants two statements, “I need a lawyer” were not unambiguous and unequivocal

statements that he wanted an attorney present during the interview, but rather an expression

that he might need legal counsel at some future time. Defendant extracts the two statements

from the following monologue:

I need a lawyer. I ain’t going to show you no – I can’t sit here and show you

no remorse and keep talking, and you putting this on me. I need a lawyer

then, is what it sounds like. I ain’t no damn dummy either, keep talking to

you. . . . So I just ask you what this is, like, what is you fixin’ to charge me

with?

The State argues that Defendant’s two statements that he “need[ed] a lawyer” were

ambiguous because they were qualified by the phrase “is what it sounds like.” The State

also points out that Defendant continued to talk after he twice stated he needed a lawyer.

Defendant asked Sergeant Donald what he was being charged with. Sergeant Donald

answered that Defendant was being charged with attempted murder, and Defendant

immediately asked what Sergeant Donald thought he would “get out of” that charge. The

State argues that Defendant’s questions to Sergeant Donald indicated his desire to continue

the interview without an attorney present.

First, we agree with the State that the above statements by Defendant do not

constitute an unambiguous and unequivocal request for counsel. Whether or not an

accused has actually invoked his right to counsel during interrogation is an “objective

inquiry.” Davis, 512 U.S. at 459. “The accused ‘must articulate his desire to have counsel

present sufficiently clearly that a reasonable [police] officer . . . would understand the

statement to be a request for an attorney.’” State v. Saylor, 117 S.W.3d 239, 246 (Tenn.

2003) (citing Huddleston, 924 S.W.2d at 670). The investigating officers may continue to

question an accused if the accused’s reference to counsel is ambiguous or equivocal. Id.

Defendant’s statement, “I need a lawyer then, is what it sounds like” is similar to

other statements that this Court has found to be equivocal or ambiguous. See, e.g., State v.

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

- 10 -

6, 1997) (“I probably need to get a lawyer, don’t I?”), perm. app. denied (Tenn. Mar. 9,

1998); 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.”), perm. app.

denied (Tenn. Feb. 16, 2011); 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?”), no perm. app. filed.

Our supreme court in Climer noted that equivocal statements like those in the cases

cited above communicate “merely a potential desire to consult with counsel and lack[ ] the

clarity and definitiveness characteristic of statements deemed unequivocal invocations of

the right to counsel.” 400 S.W.3d at 563-64 (citations omitted). Defendant’s statement

did not clearly communicate his desire for an attorney to be present before questioning

continued. Furthermore, even if we deemed the statement to be an unequivocal invocation

of the right to counsel, Defendant immediately initiated further communication by asking

what charges he was facing. See, e.g., Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983)

(concluding that the defendant’s question, “Well, what is going to happen to me now?”

evinced “a willingness and desire for a generalized discussion about the case” and “was

not merely a necessary inquiry arising out of the incidents of the custodial relationship”).

Defendant continued the dialogue with Sergeant Donald. Once a suspect invokes

his right to counsel under the Fifth Amendment, he or she “is not subject to further

interrogation by the authorities until counsel has been made available to him, unless the

accused himself initiates further communication, exchanges, or conversations with the

police.” Edwards, 451 U.S. at 484-85. After viewing the video recording of the interview,

the trial court observed that Defendant “kept on talking about all kinds of stuff without the

officer asking a question. . . . [a]nd [the trial court] noted that throughout the interview.”

The trial court noted that Defendant “kept on talking constantly” after each of his references

to an attorney and that “Defendant’s actions were different from what he was saying.”

We agree with the trial court’s assessment. Immediately after Defendant stated that

it sounded like he needed a lawyer, he asked Sergeant Donald about the charges against

him and the potential consequences of the charges. Sergeant Donald answered Defendant’s

questions, telling him that he was being charged with attempted murder and that “the judge

makes [a sentencing] decision.” As soon as Sergeant Donald answered Defendant,

Defendant immediately began complaining about the way he had been treated in jail. He

continued speaking to Sergeant Donald for several minutes. By initiating further dialogue,

Defendant voluntarily and knowingly waived any invocation of his right to counsel. See

id.

Defendant also asserts that he invoked both his right to remain silent and his right

to counsel when he said, “we through with this . . . I gotta find out about a lawyer.” Again,

- 11 -

the State points out that Defendant misrepresents the statement by not putting it in context

of the full quote, in which Defendant asked Sergeant Donald: “Okay, I do want to ask you

all, before we [unintelligible], are we through with this? ‘Cause y’all are lying and I

[unintelligible] and I gotta find out about a lawyer.” We agree with the State that Defendant

did not unequivocally and unambiguously assert his right to remain silent when he asked

“are we through with this?” rather than declare, “we through with this,” as Defendant

asserts on appeal. We further conclude that Defendant’s statement, “I gotta find out about

a lawyer,” was not an unequivocal invocation of his right to have counsel present for the

interview.

Based on our review of the video-recorded interrogation, Defendant did not

unequivocally and unambiguously invoke his right to counsel or his right to remain silent.

Accordingly, the trial court did not err by not suppressing Defendant’s statement.

Moreover, even if we deemed any of Defendant’s references to a lawyer as unambiguous

requests for the assistance of counsel and determined that the trial court should have

suppressed his statement, the error would be harmless in light of the overwhelming

evidence against Defendant.

“The erroneous admission of evidence obtained in violation of a defendant’s

Miranda rights is a non-structural constitutional error, and as such, is subject to . . .

harmless error analysis.” Climer, 400 S.W.3d at 569-70. The State bears the burden of

demonstrating beyond a reasonable doubt that a non-structural constitutional error did not

contribute to the guilty verdict. Id. (citing State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn.

2008)). “An inquiry into harmless error does not turn upon the existence of sufficient

evidence to affirm a conviction or even a belief that the jury’s verdict is correct.”

Rodriguez, 254 S.W.3d at 372. The proper inquiry is whether the “error more probably

than not had a substantial and injurious impact on the jury’s decision-making.” Id.

Even if Defendant’s statement, in which he admitted that he shot Ms. Graves and

stole her belongings, had been suppressed, the jury heard the same evidence from Ms.

Graves herself. Ms. Graves gave detailed testimony about Defendant’s actions on the night

of the shooting. She testified that Defendant called her and asked to come inside her

apartment, that he slept on the couch until she woke him to tell him to go back to work,

and that he entered her bedroom and shot her. She pretended to be dead while she watched

Defendant take her belongings and leave the apartment. Ms. Graves identified Defendant

as the person who shot her to her neighbor whose apartment she ran to for help. She also

identified Defendant to Officer Brisco. Based on this evidence, we conclude that the trial

court’s admission of Defendant’s statement into evidence, even if error, was harmless

beyond a reasonable doubt.

Suppression of Defendant’s gun

- 12 -

Defendant asserts that the firearm recovered by police as a result of information

gained from Defendant’s statement about the gun’s location should also have been

suppressed. The State asserts that Defendant has waived consideration of this issue by

failing to seek suppression of the gun prior to trial and by failing to include the issue in his

motion for new trial.

Defendant acknowledges that he did not explicitly reference the gun in his motion

to suppress and asserts that the motion “was broad enough to capture both the pre-trial

statement and the physical evidence that was recovered as a result of that statement.”

Nowhere in the four-page motion to suppress did Defendant mention the gun that was

recovered by police. In his reply brief, he states that “the analysis of both issues is

substantially the same.” Curiously, Defendant asserts that “had the weapon not been

included as a subject of the suppression motion, the motion, if successful, would have

essentially no effect.” To argue that the motion to suppress, if granted, would have had

“essentially no effect” if the gun were not a subject of the motion undermines any argument

by Defendant that his statement, in which he admitted that he shot and stole from Ms.

Graves, had any impact on the jury’s determination of guilt.

Nevertheless, despite Defendant’s failure to include the gun in his motion to

suppress or his motion for new trial and despite Defendant’s failure to request plain error

review or present any argument as to the five factors necessary for plain error relief, 2 we

conclude that Defendant is not entitled to relief on this issue because Defendant’s statement

was not obtained in violation of his constitutional rights.

Non-testimonial evidence discovered as a result of a statement elicited in violation

of Miranda must be suppressed “only when the statements are the product of an actual

violation of the privilege against self-incrimination, i.e., such as when actual coercion in

obtaining the statement is involved or when the invocation of the right to remain silent or

to have counsel present is not ‘scrupulously honored.’” Climer, 400 S.W.3d at 567

(quoting State v. Walton, 41 S.W.3d 75, 92 (Tenn. 2001)). While the gun is non-

testimonial evidence, we have already determined that Defendant did not unequivocally

and unambiguously invoke his right to counsel or his right to remain silent. Therefore,

2

When conducting plain error review, this Court will grant relief only when the following five

prerequisites are satisfied: (1) the record clearly establishes what occurred in the trial court; (2) a clear and

unequivocal rule of law was breached; (3) a substantial right of the accused was adversely affected; (4) the

accused did not waive the issue for tactical reasons; and (5) consideration of the error is necessary to do

substantial justice. State v. Gomez, 239 S.W.3d 733, 737 (Tenn. 2007) (internal citations and quotation

marks omitted). The defendant bears the burden of persuading an appellate court that plain error exists.

State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

- 13 -

under Walton, the exclusionary rule would not extend to the gun. Defendant is not entitled

to relief on this issue.

Flight Instruction

Defendant asserts that the trial court erred by giving a jury instruction on flight

because he contends that the evidence did not support the instruction. The State responds

that there was ample evidence from which the jury could have inferred that Defendant hid

out or evaded police to support the instruction. We agree with the State.

“It is well-settled that a defendant has a constitutional right to a complete and correct

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. Dorantes, 331 S.W.3d 370, 390 (Tenn. 2011).

“Challenges to jury instructions present mixed questions of law and fact; therefore, we

review challenged instructions de novo without a presumption of correctness.” State v.

Smith, 492 S.W.3d 224, 245 (Tenn. 2016).

Flight or attempted flight may bear on the defendant’s intent, purpose, or

consciousness of guilt and may connect the accused with the commission of the offense.

Rogers v. State, 455 S.W.2d 182, 186 (Tenn. Crim. App. 1970). When the jury is presented

with evidence of flight, it may draw an inference of guilt after considering the

circumstances of flight in the absence of an explanation of the “‘reasons or motive’” for

the flight. Id. at 186-87 (quoting 22A C.J.S. Criminal Law § 625). Flight requires both a

leaving of the scene and a subsequent act indicative of an intent to flee:

“The law makes no precise distinction as to the manner or method of [a]

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 of the community for parts

unknown, to constitute flight.”

Dorantes, 331 S.W.3d at 388 n.16 (quoting Rogers, 455 S.W.2d at 187). “Evidence of

flight to avoid arrest may be rebutted by a credible explanation of some motive other than

guilt, but the conclusion to be drawn from such evidence is for the jury upon proper

instructions from the trial court.” Hall v. State, 584 S.W.2d 819, 821 (Tenn. Crim. App.

1979). In order for the flight instruction to be warranted, sufficient evidence must exist to

support the instruction. State v. Berry, 141 S.W.3d 549, 588 (Tenn. 2004) (appendix).

The trial court gave the following instruction on flight, over Defendant’s objection:

- 14 -

Now 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 involuntary withdrawal of one’s self for the purpose of evading

arrest or prosecution from the crime. Whether the evidence presented proves

beyond a reasonable doubt that the Defendant fled is a question for your

determination. The law presumes – 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, the evasion or concealment in the community or in leaving of 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 Defendant is guilty of the

crime. 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 Defendant. 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

Defendant, the reason for it and the weight to be given to it are questions for

you to determine.

Ladies and gentlemen, the court has charged you concerning an inference

that the jury may make, this is with reference to flight, in regard to certain

evidence. However, the jury is not required to make this inference. It is the

exclusive province of the jury to determine whether the facts and

circumstances shown by all the evidence in the case warrant the inference

which the law permits the jury to draw. The inference may be rebutted by

direct or circumstantial evidence or both, whether it exists in the evidence of

the State or is offered by the Defendant, although the Defendant is not

required to rebut the inference raised, you should consider such explanation

along with all the evidence to determine not only the correctness of the

inference but also the reasonableness of the Defendant’s explanation. You’re

not bound to accept either the inference or the Defendant’s explanation. The

State must prove beyond a reasonable doubt every element of an offense

before the Defendant can be found guilty.

We conclude that the evidence at trial was sufficient to support the flight instruction

in this case. Defendant argues that he turned himself in to police on the day his arrest

warrant was issued. The fact that Defendant turned himself in two days after the offenses

did not preclude the jury from determining that Defendant attempted to evade detection

- 15 -

and conceal himself between the time when he left Ms. Graves’ apartment and when he

turned himself in.

Although Defendant contends that the evidence does not support that he hid out

after he left the scene, the facts presented at trial could support the conclusion that the

Defendant was hiding out. The State points to Defendant’s statement to Sergeant Donald

as evidence that Defendant hid out after the shooting. Defendant stated that he was scared

after he shot Ms. Graves, and, believing that she was dead, he went to a cemetery in

Humboldt where his mother was buried. At the cemetery, Defendant got rid of his gun and

the items he stole from Ms. Graves after the shooting. Defendant also told Sergeant Donald

that he lay in the bushes all day with a gun to his head two days before he turned himself

in to police.

We have already concluded that Defendant’s statement was not erroneously

admitted. This evidence was sufficient to support an instruction on flight. Moreover,

outside of Defendant’s statement, there was sufficient evidence of a hurried departure from

the crime scene and a subsequent evasion to warrant the instruction on flight. Finally, the

instructions properly informed the jury that whether the Defendant fled was a question

solely for their decision, that they need not infer flight, and that flight alone was insufficient

to prove guilt. Defendant is not entitled to relief on this issue.

Double Jeopardy

Defendant contends that his convictions for attempted first degree murder and

aggravated assault violate principles of double jeopardy and should be merged. The State

argues that Defendant has waived consideration of the issue because he failed to include it

in his motion for new trial.

Rule 3(e) of the Tennessee Rules of Appellate Procedure provides:

[I]n all cases tried by a jury, no issue presented for review shall be predicated

upon error in the admission or exclusion of evidence, jury instructions

granted or refused, misconduct of jurors, parties or counsel, or other action

upon which a new trial is sought, unless the same was specifically stated in

a motion for new trial; otherwise such issues will be treated as waived.

Tenn. R. App. P. 3(e); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn.1997) (holding

that a defendant relinquishes the right to argue on appeal any issues that should have been

presented in a motion for new trial).

- 16 -

Although Defendant has not requested plain error review and has failed to present

any argument as to the plain error factors, even in his reply brief, we conclude that

Defendant cannot establish that a clear and unequivocal rule of law has been breached. In

order to prevail under the plain error doctrine, five factors must be present: (1) the record

must clearly establish what occurred in the trial court; (2) a clear and unequivocal rule of

law must have been breached; (3) a substantial right of the defendant must have been

adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5)

consideration of the error is necessary to do substantial justice. State v. Gomez, 239 S.W.3d

at 737.

“It is well settled in Tennessee that, under certain circumstances, two convictions or

dual guilty verdicts must merge into a single conviction to avoid double jeopardy

implications.” State v. Berry, 503 S.W.3d 360, 362 (Tenn. 2015) (order). “Whether

multiple convictions violate double jeopardy is a mixed question of law and fact that we

review de novo with no presumption of correctness.” State v. Smith, 436 S.W.3d 751, 766

(Tenn. 2014).

The right against double jeopardy ensures “[t]hat no person shall, for the same

offense, be twice put in jeopardy of life or limb.” Tenn. Const. art. I, § 10. In other words,

the prohibition against double jeopardy protects criminal defendants from “multiple

punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

Our supreme court has observed “in single prosecutions, ‘multiple punishment’ challenges

ordinarily fall into one of two categories: unit-of-prosecution claims and multiple

description claims.” State v. Allison, 618 S.W.3d 24, 43 (Tenn. 2021) (citing Watkins, 362

S.W.3d at 543). This case presents a multiple description claim, which arises when a

defendant has been convicted of violating two different statutes.

In State v. Watkins, our supreme court adopted the two-pronged Blockburger test

for multiple description claims. Watkins, 362 S.W.3d 530, 556 (Tenn. 2012). “The first

step of the Blockburger test is the threshold question of whether the convictions arise from

the same act or transaction.” Id.

If the threshold is surpassed, meaning the convictions arise from the same

act or transaction, the second step of the Blockburger test requires courts to

examine the statutory elements of the offenses. If the elements of the

offenses are the same, or one offense is a lesser included of the other, then

we will presume that multiple convictions are not intended by the General

Assembly and that multiple convictions violate double jeopardy. However,

if each offense includes an element that the other does not, the statutes do not

define the “same offense” for double jeopardy purposes, and we will presume

that the Legislature intended to permit multiple punishments.

- 17 -

Id. at 557.

Pursuant to Blockburger, as adopted in Watkins, the threshold inquiry is satisfied in

this case. Clearly, Defendant’s convictions arose from the same act or transgression. See

Watkins, 362 S.W.3d at 545. We must next determine whether the legislature intended to

prevent or to preclude dual convictions. When the legislature has not clearly expressed its

intent, we must examine the elements of each conviction offense. We “make[] this

determination by examining statutory elements of the offenses in the abstract, rather than

the particular facts of the case.” State v. Cross, 362 S.W.3d 512, 520 (Tenn. 2012).

In his two-paragraph argument on the issue, Defendant relies on cases that applied

the four-part analysis established in State v. Denton, 938 S.W.2d 373 (Tenn. 1996).

However, in Watkins, our supreme court specifically abandoned the Denton analysis in

favor of the Blockburger same elements test. Watkins, 362 S.W.3d at 556. In abrogating

the Denton analysis, the Watkins court rejected the “same evidence” analysis relied upon

in the cases cited by Defendant. Id. at 552-553 (stating that analysis of the evidence used

to prove the offenses was ineffective in ascertaining legislative intent, the key consideration

in multiple punishment cases).

Applying the Blockburger same elements test, the State asserts that each offense

includes an element that the other does not. Specifically, the State argues that attempted

first degree murder requires that a defendant intended to kill the victim, whereas aggravated

assault does not, and that aggravated assault requires that a defendant caused bodily injury

to the victim, whereas attempted first degree murder does not.

As charged in the indictment, first degree murder is a “premeditated and intentional

killing of another.” T.C.A. § 39-13-202(a)(1). Criminal attempt occurs when a person

“[a]cts with intent to complete a course of action or cause a result that would constitute the

offense, under the circumstances surrounding the conduct as the person believes them to

be, and the conduct constitutes a substantial step toward the commission of the offense.”

T.C.A. § 39-12-101(a)(3). As charged in the indictment, aggravated assault requires proof

that Defendant intentionally or knowingly caused bodily injury to the victim by the use of

a deadly weapon. T.C.A. §§ 39-13-101(a)(1), -102(a)(1)(a)(iii).

Appellate courts of this state have consistently held that aggravated assault is not a

lesser-included offense of attempted first degree murder because each contains an element

that the other does not. Demonbreun v. Bell, 226 S.W.3d 321, 324 (Tenn. 2007); State v.

Bobby J. Hughes, No. W1999-00360-CCA-R3-CD, 2001 WL 91736, at *14 (Tenn. Crim.

App. Jan. 26, 2001), no perm. app. filed; State v. Christopher Todd Brown, No. M1999-

00691-CCA-R3-CD, 2000 WL 262936, at *2 (Tenn. Crim. App. Mar. 9, 2000) (holding

- 18 -

that assault and aggravated assault are not lesser included offenses of attempted first degree

murder under the Burns analysis because the statutory elements of assault and aggravated

assault are not included in the statutory elements of attempted first degree murder), perm.

app. denied (Tenn. Sept. 10, 2001).

Based on our analysis of the statutory elements of the offenses of aggravated assault

and attempted first degree murder, we conclude that the legislature intended to permit

multiple convictions and that multiple convictions do not violate double jeopardy.

Consequently, no clear and unequivocal rule of law was breached and the trial court’s

failure to merge Defendant’s convictions in counts 1 and 2 was not plain error. Defendant

is not entitled to relief on this issue.

CONCLUSION

In consideration of the foregoing and the record as a whole, we affirm the judgments

of the trial court.

___________________________________

TIMOTHY L. EASTER, JUDGE

- 19 -