### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Se pte m be r 21, 200 5 S es sio n



### STA TE OF TENNESS EE v. LETONI O SW ADER

Direc t Appeal from the Circ uit Court for Rutherford Coun ty No. F -54010 Jam es K . Clayton, Jr., Judge

No. M2005- 00185-CCA -R3-C D - F iled Fe bruary 6, 2006

A Rutherfor d CountyCircuit Court jury convicted th e appe llant, L etonio Swader , of first deg ree felony murder, se cond deg ree murder, attempted espec ially ag g ravated robbery , and possession of a dea dly wea pon during the co m mission of an offe nse. The tr ial court mer g ed the murde r convictions and sentenc ed the a ppellant to life. The tr ial court a lso sentence d the appe llant to ten
y ear s for the attempted espec ially ag g ravated robbery conviction and two y ear s for the possession of a wea pon conviction. The trial court order ed the appellant to se rve the life and te n-y ear sentenc es

concur rently and orde red tha t t h e t wo -y ear sentenc e be se rved c onsecutively to the other two
sentenc es. On a

ppeal, the a

ppellant claims (1) that the S tate commit ted reversible error by telling po te nti a l ju ro rs du ri ng vo ir dir e that th e pu nis hme nt fo r fi rs t deg re e mur de r in this c a se wa s li fe wi th the possibilit y

of par ole, (2) tha t the trial court e rre d by failing to suppress his state ment to police,

a nd(3 ) tha t th e e vid e nc e is i ns uf fi c ie nt t o s up po rt

the c on vic tio ns be c a us e the re is n o e vid e nc e to

corr oborate his statement to police that he intende d to rob som eone. Upon revie w of the r ecor d and the parties’ brief

s, we c onclude that the State’s comments during voir dire we re imprope r but ha rm le ss e rr or

a nda ff ir m th e jud g me nts of

the tr ia l c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Ci r c uit Co ur t a r e Affir m e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of t he court, in which D AVI D H. W ELLES a ndJ.C. M C L IN , J J
., joined.

Ge ra ld L . M e lto n a ndRus se ll N . Pe rkins , M ur fr e e sb or o, Te nn e sse e , f or the app e lla nt, L e ton io Swader

.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Da vid H. F ind le y , Ass ist a nt A tto rn e y Ge ne ra l; Wil liam C. W hitesell, J r., District Attorney Gene ral; and Tr evor H

. L y nch, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.2 OP IN ION

I. F ac tu al B ac kgr ound

On Fe bruary

2, 2003, the vi cti m, Kristen Holzapfel, wa s shot in the back while standing

ou tsi de a n a

pa rt me nt c omp le x in Mu rf

re e sb or o. A p e tit ion wa s f ile d in the Ruthe rf

or d Co un ty Juve nil e Cou rt , c ha

rg ing the app e lla nt w ith fi rs t de g re e fe lon y mur de r, attempte d e sp e c ia lly ag g ravated robbe ry , and possession of a firea rm during the commission of an off ense. The appellant
was tra n s fe rr ed to cr iminal court to be tried a s an adult. The Ruther ford County Gra nd J ury

then char g ed the a

ppellant with first deg ree preme ditated murder , first deg ree felony murder, attempted espec ially ag g ravated robbe ry , and possession of a firea rm during the commission of an off ense.
Way ne L awson, the vic tim’s boy friend, te s tified at trial that he w as a de tective with the Murfre esb o ro Police Depa rtment and wa s divorced w ith two y oung children. In Fe bruary 2003, L a w s o n l i v e d i n t h e G a t e w a y ap ar t m e n t c o m p l e x , ap ar t m e n t n u m b e r A

- 9

. H e s t a t e d t h a to n S u n d a y, Fe bruary 2, 2003, he and the victim spent the day with his children. That evening
, the victim and L awson’s daug hter made jewelry from a cra ft kit, and L awson pre pare d dinner. The y finished ea ting about 5:30 p.m., and L awson be g an bath i n g his children while the vic tim cleaned up in the living room. At some point, the vi ctim went int o the bathroom and asked L awson for his car key s so that she could g et a va cuum clea ner out of his c ar. L awson g ave the victim the key s, and the victim went outside.

L awson testified tha t after h e fi n i s hed bathing his children, his daug hter told him that she could not find the victim and that a police office r wa s outside. L awson l o oked out a window a nd saw the office r st anding over the victim, who was ly ing on the g round next to L awson’s c ar. L awson

we nt o uts ide , a ndOf

fi c e r A pr il Sa mol tol d L a ws on that sh e bel iev e d th e vic tim ha d b e e n s ho t. L awson saw a small hole in the victim’s bac k and a la rg e amount of blood a

round her head. L awson turne d the vic tim ov e r an d saw that her e y e s we re op e n an d tha t her pu pil s we re fi xed . T he vic tim

was unre sponsive, had no pulse, a nd was not bre athing . L awson stated tha t he neve r hea rd a g un sh ot.

I s a a c Pu tn a m t e s ti f

ie d tha t in Fe b ru ar y

2 0 0 3
, h e li v e d in th e G a te w a y ap ar tm e n t c o mp le x, apartment number A-13. O n the eve ning of Fe bruary 2, he and his wife he ard a g unshot. Put nam walked onto his patio and saw the victim ly ing on the sidewalk. He also saw blood underneath the victim’s body

and ra n back inside to tele phone 911. B y the time he g ot off the tele phone, Of fice r Samol had arrived. On cross-e x amination, Putnam stated t hat after he he ard the g unshot and went

ou tsi de , h e didno t se e a ny on e oth e r tha n th e vic tim

.

Offic er A pril Samol of the Murfre esbor o P o l i ce Department testified that on Fe bruary 2, 2 0 0 3
, s h e w as d i s p at ch ed t o t h e G at ew a y a p a r t m e n t co m p l ex i n re s p o n s e t o a p o s s i b l e s h o o t i n g. When she arrived, I saac Putnam flag g ed her down and told her

that a woman w as ly ing in the pa rking lot . Of

fi c e r Sam ol sa w the vic tim ly ing fa c e -d ow n in a fe ta l po sit ion . Wa y ne L a ws on c a me out of his apartment and asked what was g oing on, and Officer Samol g ot out of her patrol car and3

tol d h im tha t sh e tho ug ht the vic tim ha d b e e n s ho t. L a ws on be g a n s c re a min g a ndc rying . The vic tim did not have a pulse and wa s not breathing

. L awson lifted the victim’s shirt, and Of fice r Samol saw

a g u n s h o t w o u n d in th e v ic ti m’ s b a c k

. Wh e n o th e r o f f ic e r s arr iv e d
, th e y

f o u n d a n in e mi ll imeter shell casing in the parking lot. T h ey al s o fo u n d a set of key s, a vac uum cleane r, and a vacuum clea ner ba g

.

J ennife r Ly nn Bla ckwe ll testified that on Fe bruary 2, 2003, she lived in the G building of the Gatew ay apartment c omplex

. That evening
, Bla ckwe ll wa s talking on her c ellular tele phone whe n an Af rica n-American male in his teens or ea rly twenties wa lked up to her g lass door. He asked Bla ckwe ll for a c iga

rette, a nd she g ave him one. T he male was st anding about one and one- half fe et

a wa y fr om B la c kw e ll, a ndsh e sa w h im f or abo ut thi rt y se c on ds

. She state d that sh e wa s n ine ty to nin e ty -f ive pe rc e nt c e rt a in tha t th e ma le wa s th e app e lla nt.

Special Ag ent J ason Wilkerson of the Te nnessee Bur eau of I nvestig ation (TB I ) testified that he investig ated the case

. A nine millimeter shell casing was re cover ed fr om the crime sc ene a nd was found about twe nty

fee t from the sidewa lk. Ag ent Wilkerson also attended the victim’s autopsy and

re c e ive d v ia ls o f the vic tim ’s blo od a nd ur ine a nd he r c lothe s. At so me po int , th e app e lla nt b e c a me a suspec t. O n the night of Fe bruary 7, 2003, Ag ent Wilkerson and Dete ctive Major Jim Gag e we re sitti ng in Gag e’s unmar

ked police ve hicle and w ere co n d u cting surveillance on the appe llant’s home. Th e app e lla nt c a me ou t of his ho us e , w a lke d o ve r t o th e ve hic le , a ndbe g a n ta lki ng wi th the of fi c e rs

. The a ppellant told the office rs hi s name, and the officers told the appellant that they neede d to speak with him about a crime tha t had taken pla ce. T he appellant g ot in the front passeng er se at of the vehicle, A g ent Wilker s o n go t i n the bac k seat, a nd Detec tive Gag e drovethem to the police department. Ag ent Wilkerson testified that the appe llant was not under a rre st at that time.

Ag ent Wilkerson testified that wh en t h ey arrived at the police department, he re ad the appellant Mira nda wa

rning s and had the appellant sig n a wa iver of rig hts form. The a ppellant g ave a stateme nt, and Ag ent Wilkerson wrote out the stateme nt. After the interview, the appellant r ead, made corre ctions to, and si g ned the written st atement, which was re ad to the jury . Acc ording to the written statement, the a

ppellant borrow ed a nine milli meter g un from Eric Sarg ent. On the da y of the s hootin g , h e w a s a t a n ap ar tm e n t c o mp le x in M u r f r e e s b o r o a n d w a s n e ar

th e G b u il d in g

. He walked towa

rd the A building and saw a woman outside. The appellant walked up to the woman and po int e d the g un a t he r. Th e wo ma n, wh o wa s ne ar the sid e wa lk, turne d to ru n, and th e app ell ant, who was standing in the parking lot, turne d awa y from her. As the appellant turne d, the g un “we nt off.” The a

ppellant did not know if the woman ha d been shot a n d ra n aw ay . Acc ording to the written statement, the a

ppellant pointed the g un at the woman in or der to g et money from her and had “thoug ht about robbing someone be fore [he] went over there and did it.”

Ag ent Wilkerson testified that during the interview
, he asked the appellant how the appe llant g ot t o th e apa

rt me nt c omp le x an d th e app e lla nt w ou ld not te ll h im. He state d th a t th e app e lla nt a lso would not say

wher e the a

ppellant went a fter the shooting. The appellant told Ag ent Wilkerson that afte r the shooting , he g ave the g un back to its owner b u t wo u ld not tell him who owned the g un. Ag ent Wilkerson later l earned that the g un belong ed to J immyDoug las’ uncle . Ag ent Wilkerson4

sa id tha t th e app e lla nt t oldhim the app e lla nt w a s a

bo ut s e ve n f

e e t a wa y fr om the vic tim a t th e tim e of the shooting . Ag ent Wilkerson testifi ed t h at the appe llant’s interview w as videotape d, and the tape wa s play ed for

the jury

.

De te c tiv e Ma

jor Jame s E . G a g e of

the Mu rf re e sb or o Po lic e D e p a

r t m e nt t e sti fi e d th a t be c a us e Way ne L awson wa s a dete ctive with the police de partment, the TBI handled the inve stiga tion. From Jenn if e r B la c kw e ll’ s de sc ri pti on , th e po lic e de ve lop e d a c omp os ite sk e tc h o f a

su sp e c t. B la c kw e ll ha d d e sc ri be d th e su sp e c t a s a n A fric a n- Am e ri c a n ma le ; a bo ut f ive fe e t, n ine inc he s ta ll; in h is e arl y twenties; and we aring a bulky
, q u i l t ed j ac k et. Detective Ga g e stated tha t when he a nd Ag ent Wil kerson dr ove the a

ppellant to the police department, the appellant was wea ring a hea vy , downfilled jacke t. At the pol ice department, the appellant told Detective Ga g e that he ha d talked with a

wo ma n a t th e apa

rt me nt c omp lex befo re the s ho oti ng . D e te c tiv e Ga g e te sti fi e d th a t a c c or din g to Jenn if e r B la c kw e ll, the ma le sh e sa w o n th e nig ht of th e shoo tin g ha d a sk e d h e r f or a c ig are tte betwee n 6 : 00 and 6:05 p.m. Detec tive Gag e stated tha t the 911 call re porting the shooting w as

re c e ive d a t th e po lic e de pa rt me nt b e tw e e n 6 :12 a nd6:1 6 p .m.
Dr. Amy R. Mc Master testified that she perf ormed the victim’s autopsy . The victim had a g unshot wound to the middle of her uppe r bac k an d died from the g unshot. The bullet trave led straig ht, and Dr. McMaster conclude d that the gun was not fired at an angle

. The bull et seve red the vic tim ’s sp ina l c or d, a nd the vic tim wo uld ha ve be e n pa ra ly zed a ndun able to w a lk. Th e bu lle t a lso

sever ed the victim’s aorta, and the vic tim would have bled to dea t h q u i ck ly . After rec eiving the g unshot, the victim could have lived for a fe w minutes, but she would have been unable to spea k. Dr . M c Ma ste r f

ou ndno so ot on th e vic tim ’s sk in o r c lothin g , in dic a tin g that th e wo un d w a s a “distant g unshot wo u n d

. ” On cross-examination, Dr. McMaster te stified that if the g un had bee n

se ve n f e e t a wa y fr om the vic tim

wh e n f ir e d, th e res ultin g wo un d w ou ld h a ve be e n c la ssi fi e d a s a distant gunshot wound.

Spe c ia l Ag e nt Do n Carm a n of the TB I te sti fi e d th a t he wa s a

fo re ns ic sc ie nti st i n th e fi re arm s identification unit. He re ceive d a nine m i l l imeter pistol from Ag ent Wilkerson, a shell ca sing

re c ov e re d f

ro m th e c ri me sc e ne , an d a bull e t re c ov e re d fr om the vic tim ’s bo dy . A g e nt C arm a n te stfired bullets fr om the pistol and compare d them to t h e b u l l et rec overe d from the victim. He conclude d that the bullet rec overe d from the victim wa s fired f rom the g un. He a lso ex amined the spent shell casing rec overe d from the crime scene and conc luded that it had bee n fired f rom the g un. Ag ent Carman stated that in order f or the g un to have be en fire d, seven a nd three -quarter pounds of pres s u r e h a d to b e ap p li e d to th e trig g e r

. H e e xa mi n e d th e v ic ti m’ s c lo th in g a n d f o u n d no g unpowder re s i d u e. On cross-examination, Age nt Carman testified that if the g un had bee n fired from more than three or fo u r fe et awa y , the g un would not have lef t gunpow der r esidue on the vic tim

.

The a

ppellant, who wa s seventee n y ear s old at the time of trial, testified t h at h e h ad bee n six teen a t the time of

the shooting a nd a full-time hig h school student. On the af ternoon of F ebrua

ry 2, 20 03 , h e wa s a t hi s c ou sin Rob e rt Go oc h’ s hou se a nd sta y e d the re fo r t wo to f ive ho ur s. At

so me point, the appellant telephoned S hurre ll Hy de, a former g irlfriend. He we nt to Hy de’s house about5

5:30 p.m. and stay ed ther e for about thirty

minutes. The app ell ant then we nt outside, smoked a

ma r ij u a n a c ig ar e tt e , a n d s ta

r te d w a lkin g

. H e s a id th a t h e w a lk e d to th e G a te w a y ap ar tm e n t c o mp le x,
saw a woman outside, and a s k ed h er fo r a ci g are tte. The woma n g ave him the c iga rette, a nd the appellant continued walking

. The appellant saw the victim a nd walked past her. He turne d around, and the two of

them looked at eac h other briefly

. The appellant said that the victim turne d to run, that he turne d to run, that the g un fired, a nd that “eve ry thing we nt black.”

Th e app e lla nt te sti fi e d tha t he ra n b a c k to Rob e rt Go oc h’ s h ou se a ndthat G oo c h d ro ve him home. H e lef

t the g un at Gooch’ s house and lea rned the next m orning that the victim had bee n k i l l ed

. A f

ew d ay s af

t ert h e s h o o t i n g, t h e a p p el l an t n o t i ce d Age n tW i l k er s o n an d De t ec t i v e G age outside, near

a chur ch. He walked up to them a nd told them his name. The off icer s drove the appellant to the police department, and the appe llant told them about the shooting. He stated that he did not reme mber telling Ag ent Wilkerson that he had g one to the apartment complex i ntending
to r ob so me on e a ndthat he didno t g o to the Gate wa y apa rt me nt c omp lex in ten di ng to c omm it a robbery . He acknow ledg ed signing the written stateme nt but said that he did so because he w anted to see his m other and “g et i t over with.” When asked if he could g ive a rea son for his poi nting the g un a t th e vic tim , th e app e lla nt s ta te d th a t he c ou ld n ot.

On cr oss-examination, the appellant testified that he could read and write. He stated that he borrowe d the g un fr o m E ri c Sarg ent, a sc hoolmate, on the Tue sday or Wednesday

befor e the shooting and that he w as ca rry ing the g un for pr otection. The a ppellant said that he c arried the g un in his waistb an d o r his pocket and tha t he showed the wea pon to severa l friends. He said that Sarg ent told him the gun wa s loaded but that he ne ver c hecke d the g un. On the eve ning of Fe bruary 2, the appe llant visit ed Shurrell Hy de, went outside and smoked marijuana
, and started wa lking. He walked to the Gatew ay apartment c omplex
, looking for someone who could g ive him a c i g are tte. He sa w J ennife r B lackwe ll talking on her c ellular tele phone, and she g ave him one. A fter r ece iving the cig ar e tt e , h e c o n ti n u e d w a lkin g b u t d id n o t k n o w w h e r e h e w a s g o in g

. T h e ap p e ll a n t sa w the victim and walked past her. He turned around and made ey e contact wit h the vi ctim. He pulled out his gun, the victim turned to run, the appe llant turned to run, and the g un fired.

Th e app e llant a c kn ow le dg e d th a t bef or e the sh oo tin g , th e vic tim ha d n ot b e e n a

thr e a t to him

. He state d that he did not know why he turne d around to look at the victim and that he ran a way afte r the shooting be cause he wa s scar ed. He denied “ plotting” to rob someone and sai d that if he ha d known the victim had been s hot, he would have tried to g et help for her. The appellant sa id that he ran ba ck to Robert Gooc h’s house a nd left t he gun beside a tree but that he wa s not try ing to hide the g un

. He sa id tha t he le arn e d th e ne xt mor nin g that th e vic tim ha d b e e n k ill e d, that he we nt t o s c ho ol, and that he w as planning to turn himself in to the pol ice. He de nied shooting the victim because she could identify

him and said that he “ truly and dee ply ” did not know why he shot her.

Although t

h e a p p e ll an t w a s c h a

r g ed with first deg ree preme ditated murder , the jury convicted him of the le sse r i nc lud e d o ff

e ns e of seco ndde g re e mur de r, a Cla ss A fe lon y . T he jury a lso

c on vic te d h im o f f

ir st d e g re e fe lon y

mur de r; a tte mpt ed esp e c ia lly a g g ra va te d r ob be ry , a

Cla ss B f e l o n y; a n d p o s s e s s i o n o f

a d e a d l y w e ap o n d u r i n g t h e c o m m i s s i o n o f a n o f f e n s e , a C l a s s E f e l o n y.B e fo re trial, the S ta te w ithd re w it s n o tice o f i n te n t t o se e k a se n te n c e o f l ife w itho u t p a ro le

. 1

6 The trial co u rt m er g ed the murde r convic tions and sentence d the appe llant to life. The trial c ourt

a lso se nte nc e d th e app e lla nt a s a Ra ng e I
, sta nd ard of fe nd e r to te n y e ars fo r the a tte mpt e d e sp e c ia lly ag g ravated robbery conviction and two y ear s for the posse ssion of a we apon convic tion. The trial court orde red the appellant to ser ve the life and ten-y ear sentenc es concurre ntly and ordered tha t the two-y ear sentenc e be se rved c onsecutively to the other two.

II. Ana lys is

A. Prosecutor ’s Comments on Puni shment

The a ppellant claims that the trial c ourt err ed by ref using to allow him t o tell potential jurors
t h at he would have to serve at least fif ty -one y ear s in confinement be fore becoming elig ible for pa ro le a nd , in the a lte rn a tiv e , th a t th e tr ia l c ou rt e rr e d b y re fu sin g to g ra nt h is r e qu e st f or a mis tr ia l. He a rg ues that either measure was necessa ry beca use the prose cutor improper ly told potential jurors du ri ng vo ir

dir e that if

the jury fo un d the app e lla nt g uil ty of fi rs t de g re e mur de r, his se nte nc e wo uld be li fe wi t h the possibilit y of par ole. The State a

rg ues that in light of the evidenc e, any err or wa s harmless. We ag ree with the State that the prosec utor’s statements we re ha rmless err or.
During jury

voir dire, the district a ttorney told potential jurors that if they found the a

ppellant g uilty of first deg ree murder, the only punishment he could re ceive was life w ith the possibil ity of parole

. The prose cutor then state d,

1

As y ou see the Def endant se ated be hind me, y ou can te ll he’s

a y oung man. And I believe the proof will be that a t the time that we

a lle g e thi s o ff

e ns e too k p la c e -- a ndwe are a lle g ing of c ou rs e that th is Def endant c ommitt ed first de gree murder - - that he w as 16 y ear s of

a g e . Wo uld that fa c tor make it impo ssi ble or make y ou be un able to sit on thi s jury , deliberate, hopef ully return a verdic t, and if that verdic t is guilty
, s entence this Defe ndant to life in the penitentiary with t h e possibili ty

of par ole sometime in the future ? I s there

a ny bo dy that c ou ldn ’t

do that?

The defe nse did not make a contempora neous objec tion to the prosecutor’ s statements. Howe ver, durin g a re cess, the de fense arg ued to the trial c ourt that the prose cutor’s state ments had bee n improper a nd had put in the jurors’ minds that the appellant “could ge t out one day to perha ps make them more c omfortable w ith being a ble to pronounce that kind of sentenc e.” T he def ense r equeste d that it be a llo we d to te ll the po te nti a l ju ro rs that th e app e lla nt w ou ld h a ve to s e rv e fi ft y -o ne y e ars in confine ment befor e being elig ible for parole. The trial court refused to allow t he defense to tell the jurors about the r ang e of punishment but stated that the de fense could tell the jurors that the appellant may never be paroled. The defense reque sted a mi strial, which the tria l court denie d. When voir dire resumed, the defe nse advised th e p o t en t i al jurors that upon c onviction, the appellant f ace d the7

possibili ty

of neve r being rele ased on pa role.

Te nn e sse e Cod e An no ta te d s e c tio n 4 0- 35 -2 01 (b ) p ro vid e s th a t

[i ]n all contested criminal case s, except for c apital cr imes which ar e g overne d by

the proc edure s co n tained in §§ 39-13-204 a nd 39-13- 205, and as ne cessa

ry to comply

with the Constit ution of Tennesse e,

ar t i c l e V I, § 1 4
, a n d § 4 0

- 3 5

- 3 0 1
, t h e j u d g e s h a l l n o ti n s t ru c tt h e j u r y,

n o r shall t he attorne y s be permitted to comment at any time to the jury
, on possible pe nalties for the offe nse char g ed n o r a l l l esser inc lud e d o ff

e ns e s.

This court has c oncluded that a prosec utor’s commenting on t he possible pena lties a defe ndant might

rec eive in a nonc apital ca se wa s harmless er ror. See State v. David W ay ne Smart, No. M2001- 02 88 1- CCA -R 3- CD , 2 00 3 T e nn . Crim. Ap p. LEX I S 41 8, a t *5 2 (N a sh vil le , M a y 13 , 2 00 3) ; se e a lso State v. Charles Ray

Allen, No. M1999-00818-CCA-R3-CD, 2000 Tenn. Crim. App. L EXI S 878,

a t *2 3 ( Na sh ville, Nov . 3 , 2 00 0) (t ri a l c ou rt ’s te lli ng po te nti a l ju ro rs du ri ng vo ir dir e a nda g a in during jury

instructions that the State was not see king life without the possibil ity of par ole and that

a g uil ty ve rd ic t wou ld re su lt in the de fe nd a nt’ s re c e ivi ng a lif e se nte nc e wa s harmle ss e rr or ); Sta te v. Edwar d Pinchon, No. M1999-00994-CCA-R3-CD, 2000 Te n n

. C ri m

. App. LEXI S 262, at *13 (Na shville, Mar. 17, 2000) ( trial court’ s instructing the jury that the State was not see king life without the possibil ity

of par ole and that a g uilty verdic t would result in the defe ndant’s re ceiving a li fe sentence was ha

rmless err or). I n order

to demonstrate pr ejudice, the appellant must show that bu t f or the pr os e c uto r’ s e rr or , “ the re is a re a so na ble pr ob abil ity the jury

wo uldha ve a c qu itt e d h im of fi rs t de g re e mur de r a ndfo un d h im g uil ty of the le sse r o ff

e ns e of se c on d d e g re e mur de r o r g uil ty of no off ense at all.” Pinchon, N o. M1999-00994-CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 262, at *12; see a lso Tenn. R. Crim. P . 52(a) ; Tenn. R. App. P. 36(b).

I nitially , we note tha t d u ri n g t h e rec ess in which the de fense reque sted a mistrial, the pr os e c uto r q u o t e d

T e n n e s s e e C od e An no ta te d s e c tio n 4 0- 35 -2 01 (b ), de mon str a tin g that he wa s w e lla wa re of the statut e pr oh ibi tin g his te lli ng po te nti a l ju ro rs abo ut the app e lla nt’ s p os sib le pu nis hme nt. Despite the pr ohibition in section -201(b)
, the prosec utor arg ued at the motion for ne w trial hea ring that he could mention the possible punishment to the j ury beca use t he case invol ved a capital crime, which is g overne d by

the proc edure s contained in §§ 39-13- 204 and 39-13- 20 5. Howeve r, in the instant case, the State was not see king the death pe nalty or life without the possibility of par ole and, there fore , the exception to the proh i b i t i o n i n section -201( b) did not apply . An attorne y g ener al op ini on ha s a dd re sse d thi s ve ry iss ue

. I n the op ini on , the a tto rn e y g e ne ra l c on c lud e d that if the Sta te is not seeking the death penalty or l ife without the possibilit y of par ole in a first de g ree murder c ase, then the trial court is to impose a sentenc e of life under § 39-13-208( c), and th e c as e “ i s n ot ‘g overne d by the proce dures contained in §§ 39-13-204 and 39-13-205.’ ” Op. Tenn. Att’y Gen. No. 99-178 (Sept. 17, 1999) (quoting Tenn. Code Ann. § 40-35-201(b)). U nder those c ircumstance s, a life sentenc e is the only

possible punishment, and “Tenn. Code An n

. § 40-35-201( b) pre cludes instructing the jury

as to possible penalti es fo r t h e crime cha rg ed.” I d.; see Smart, No. M2001-8

02881-CCA-R3-CD, 2003 Tenn. Crim. App. LEXI S 418, a t *51 (citing Op. Tenn. A tt’y Gen. No. 99-178 and c oncluding in the defe ndant’s first de g ree murder c ase tha t the prosecutor wa s prec luded by the statute fr om commenting during voir dire a bout the possible penalties he mig ht rec eive)

.

Neve rtheless, we conclude that the prosec utor’s statements we re ha rmless err or. Given the

app e lla nt’ s c on fe ssi on , th e Sta te ’s c a se a g a ins t hi m w a s st ro ng . M or e ov e r, the app e lla nt o ri g ina lly had bee n char g ed with first deg ree felony murder a nd first deg ree preme ditated murde r. The jury fo un d h im g uil ty

of the fo rm e r. Ho we ve r, it a c qu itt e d h im o f p re me dit a te d mu rd e r a ndfo un d h im g uil ty of th e less e r i nc lud e d o ff e ns e of se c on d d e g re e mur de r, ind ic a tin g that th e jury c are fu lly considere d the evidenc e and c onv icted the a ppellant base d upon the State’s ca se, not upon the prosec utor’s statements during voir dire. B ased upon the entire r ecor d, we c onclude that a ppellant is not entitl ed to re lief.

B. A ppellant’s Statement

Ne xt, th e ap p e l l a n t c l a i m s t h a t t h e t r i a l c o u r t e rr e d b y f a i l i n g t o s u p p r e s s h i s s t a t e m e nt t o Ag ent Wilkerson and Dete ctive Gag e. Specif ically , he conte nds that his statement should have bee n suppressed be cause his mother was not pre sent during his interview and be cause his statement was

coer ced by

the offic ers, who r efuse d to allow him to see his mother unt il he gave the s tatement. The State arg ues that the trial court proper ly ref used to suppr ess the statement. We ag ree with the State.

Be fore ju r y v o ir d ir e , th e d e f e n s e ma d e a n o r a l mo ti o n f o r th e tria l c o u r t to s u p p ress the appellant’ s sta te me n t to police. During an in-c hamber s hearing on the motion, no witnesses testified. Ho we v er , t h e d ef

en s e t o l d t h e tr i al co u rt t h e f o l l o wi n g: Af

t erAge n tW i l k er s o n an d De t ec t i v e G age b ro u gh t t h e ap p el l an t t o t h e po l i ce d ep ar t m en t , t h ey re ad t h e ap p el l an t h i s ri gh t s an d h ad h i m s i gn

a wa iver of rights form. The appellant told the office rs that he did not want to sa y anything until he spoke with his mother. One of the officers ga ve the appellant a c ellular tele phone, and the appellant telephoned his mother a nd asked her to come to the pol ice department. One of the officers then le ft the interview room, and the r emaining office r told the appellant that his mother was on the w ay and that “y ou don ’t rea lly

want to put her throug h this, do y ou? Whydon’t y ou just go on a nd tell us wh a t ha pp e ne d, te ll us the truth .” Th e app e lla nt t he n b e g a n ta lki ng to the of fi c e r a bo ut the c ri me s. At some point, the second of fice r re turned to the int ervie w room. Whil e the appellant was g iving his state ment, one of the office rs rec eived a call, reporting that the appellant’ s mother had a rrived. The of fi ce r l ef t the room, and the rema ining of fice r had the appellant r ead a nd sign his wr itten statement. B efor e sig ning the statement, the a ppellant aske d the offic er, “Where is mymom? ” The office r told the appe llant, “[W ]ell, she’s here i n t h e b u i l ding.” The a ppellant then sig ned the
statement.

The de fense arg ued that his state ment to the police was coer ced be cause the offic ers made him give the statement bef ore the y would al l ow him to see his mother. The State a rg ued that the appellant’ s mother did not have to be pr esent in orde r for the appe llant to give the statement. The Sta te no te d th a t th e of

fi c e r wr ote ou t th e state me nt f or the app e lla nt, we nt o ve r the state me nt w ith him, had him make cor

rec tions, and had him sign the sta tement. Afte r g iving t h e s t at em en t , the9

appellant wa s allowed to see his mother. The trial c ourt no t ed that althoug h the appe llant was six teen y ear s old at the time of the crimes, he had “ been a round.” The court rule d that the offic ers h ad n o t i ntimidated the appellant or coer ced him and he ld that although it would have been pref era ble for the appellant’ s mother to have be en pre sent, her pr esenc e wa s not require d during the int e rv ie w. Th e tr ia l c ou rt ov e rr ule d th e app e lla nt’ s mo tio n to su pp re ss.

Gene rally , the Fif

th Amendment to the United S t ates Constituti on and Article I , Section 9 of the Te nnessee Constit ution provide a privileg e ag ainst self-incrimination to t hose ac cused of criminal ac tivity , making an inquiry into the voluntariness of a c onfession nec essary . See State v. Callahan, 979 S.W.2d 577, 581 (T enn. 1998). Howeve r, if an acc used is informed of his Miranda ri g hts a nd kn ow ing ly a nd vo lun tari ly wa ive s tho se ri g hts
, he ma y wa ive the pr ivi le ge agai ns t self-inc rimination. I d. (citing Miranda v. A rizona, 384 U.S. 436, 444-45, 478-79, 86 S. Ct . 1602, 1612, 1630 (1966)) . Additionally
, the t rial judg e’s f indings of f

act a t the motion to s uppress he aring

are acc orded the weig ht of a jury verdic t. See S tate v. Tate, 615 S.W .2d 161, 162 (Tenn. Crim. App. 1981). Ac cording ly
, the trial court’s decision is binding upon this court if the dec ision is s upported by a pre pondera nce of

the evidenc e. See State v. O dom, 928 S.W .2d 18, 22-23 (Te nn. 1996).

I n Cal la h a n , 9 7 9 S. W. 2 d a t 5 8 3
, o u r s u p r e me c o u r t s ta te d th a t ju v e n il e w a iv e r s must be analy zed under a

totality -of- the-c ircumstance s test that req u i re s consideration of the following fa c tor s:

(1) c onsideration of a ll circumstance s surroundi n g the

interrog ation including the juvenile’s ag e, experience
, education, and intelligenc e;

(2 ) t h e j u v en i l e’ s ca p ac i t y to understand the Mira

nda wa rn i n gs and the c onsequenc es of the w aiver ;

(3) th e ju v e n il e ’ s f

a mi li ar it y w ith M ir a n d a w ar n in g s o r the

abil ity to r e a d a ndwrite in the la ng ua g e us e d to g ive the wa rn ing s;

(4) a ny intox ication;

(5) a ny mental disease , disorder, or reta rdation; and

(6 ) the pr e se nc e of

a pa re nt, g ua rd ia n, or int e re ste d a du lt.

The supre me court further stated th at “[ w] hile courts shall exercise specia l car e in scrutinizing pu rp orte d w a ive rs by

j u v e n i l e s us pe c ts, no sin g le fa c tor su c h a s me nta l c on dit ion or e du c a tio n s ho uld by itself rende r a c onfession unconstit u t i o n al absent coerc ive police a ctivity .” I d. “[T] he admissibili ty

of a juve nile’s conf

ession is not dependent upon the pr esenc e of his par ents at the interrog ation.” State v. Carr oll, 36 S.W .3d 854, 864 (Tenn. Crim. App. 1999)

.B efore t he St at e pl ay ed t he r edact ed vi deot ape for t he j ur y , bot h par t i es ag r eed t hat t hey woul d i nt r od uce 2

t he un r edact ed vi deot ape i nt o evi dence for i dent i f i cat i on pur po s es onl y

. H owever , t he un r edact ed vi deot ape was

n ev er ma de a par t of

t h e r ec or d.

10 I nit ia lly , w e no te that th e vid e ota pe of the a pp e lla nt’ s in te rv ie w i s in the re c or d b e fo re us

. Howeve r, the tape was re dacted for tria l, and the parts of the tape show ing the appellant’ s initi al reque st that his mot her be prese nt, that he re ceive d Miranda w arning s, and that he sig ned a w aiver of rig hts form are not included in the videotape

. Neve rtheless, the a ppellant does not conte st the 2 fac t that he re ceive d Miranda w arning s o r t h at he sig ned the wa iver of rights form. I nstead, he alleg es that his statement wa s the result of police coer cion.

The videota

pe re veals that be fore the interview , Detec tive Gag e aske d the a p p el l an t if he

wa nte d a nythi ng , andthe app e lla nt laug hin g ly sa id that he wa nte d a c ig are tte . A g e nt Wi lke rs on tol d
t h e a p p el l an tt h at t h eyco u l d n o tgi v e h i m o n e, an d t h e a p p el l an t as k ed fo r a C o k e. De t ec t i v e G age l ef t t h e i n t er v i ew ro o m , an d Age n tW i l k er s o n b ega n t al k i n g t o t h e a p p el l an tab o u tt h e s h o o t i n g. S h ortly there afte r, De tective Ga g e re turned to the room with the a ppellant’s soft drink, a nd the

o ff i ce rs co n t i n u ed t o t al k

wi t h t h e a p p el l an tab o u tt h e c as e. Du ri n g t h e in t er v i ew , De t ec t i v e G age

was a dvised over his police radio that the a ppellant’s mother ha d arrived. Dete ctive Ga g e told the appellant that he was g oing to bring her to the interview r oom “in just a litt le bit” and a sked Ag ent Wil kerson how muc h longe r he neede d to inter view the appe llant. Ag ent Wilkerson said, “F ive or
te n mi nu te s, ” a nd De te c tiv e Ga g e le ft the ro om. Ag e nt Wilke rs on a nd the app e lla nt co nti nu e d to ta lk about the sh o o t i n g, wi th Ag ent Wilkerson writing the appellant’ s statement. At the end of the interview, A g ent Wilkerson had the appe llant rea d the first line of the s t at em en t aloud. The appellant then rea d the rest of t he st atement to him self. Af ter re ading the statement, the a ppellant said, “I thought my momma was supposed to be here.” Ag ent W ilkerson t old the appellant that she was downstair s and had the appellant sig n the statement.

The videota

ped intervie w demonstrate s that the appe llant possessed at leas t normal intelligenc e and w as able to r ead a nd write in the lang uag e used to g ive the Miranda warnings. The appellant ha d the capa city to unde rstand the Miranda war nings and the conseque nces of the waive r. Although the appellant wa s only six teen y ear s old at the time of the interview, the rec ord bef ore us shows that he had f

amiliarity with the juvenile court sy stem, having been a djudicated de linquent of

ma n y o f f e n s e s , in c lu d in g p o s s e s s io n o f ma r ij u a n a , d is o r d e r ly c o n d u c t, d r iv in g w ith o u t a license
, vio la tin g c urfew, and a ssa ult . T he fa c t th a t he tho ug ht h is m oth e r w a s su pp os e d to be pr e se nt i s another indication of his familiarity with the court sy stem. He was not under the influence of any alcohol or dr

ug s at the time of the inter view and did not ap p ear to be suffe ring from any mental disorders. We note that while talking with Ag ent Wilkerson and Dete ctive Ga g e, the a ppellant was calm and c ooperative. Although the appellant’ s mother was n o t present during the interview, w e

c on c lud e that th e tr ia l c ou rt pr op e rl y de nie d th e app e lla nt’ s mo tio n to su pp re ss.
C. Sufficiency

of the Evidenc e
Finally , the appe ll an t claims that the evide nce is insuffic ient to support the convictions11

beca use no evide nce, othe r than his proxim ity to the victim, co rr oborate s his statement that he intended to rob someone . The State c laims that the evidenc e is sufficie nt. We ag ree with the State.

When an appe llant challeng es the suff iciency of the convicting evidenc e, the standa rd for

re vie w b y a n a pp e lla te c ou rt

is “ wh e the r, a ft e r vie wi ng the e vid e nc e in the lig ht m os t f a vo ra ble to the prosec ution, any

rational trier

of fa ct could have found the e ssential elements of the crime be y ond

a re a so na ble do ub t.” Jac ks on v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 , 9 9 S. Ct. 27 81 , 2 78 9 ( 19 79 ); Te nn . R. Ap p. P. 1 3( e ). Th e Sta te is e nti tle d to the str on g e st legi ti mat e vie w o f the e vid e nc e a nda ll

rea sonable or le g itimate infere nces w hich may be dra wn there from. State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978). Questions conce rning the cre dibilit y of witnesses and the weig ht and value to be af forde d the evidenc e, as w ell as all fac tual issues raised by the evidenc e, ar e re solved by the trier of fac t. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). T his court will not rewe igh or

ree valuate the evidenc e, nor will this court substitute its inferenc es dra wn from the c ircumstantial evidenc e fo r t h ose infer ence s drawn by the jury . I d. Be cause a jury conviction re moves the presumption of innoce nce with w hich a defe ndant is initially cloake d at trial and r eplac es it on appea l with one of g uilt, a convicted de fenda nt has the burde n of demonstra ting to this court that the evidenc e is insufficient. State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982).

I n Tenne ssee, it is well-esta blished that a convic tion cannot be f o u nded solely

upon a defe ndant’s confe ssion. State v. Smit h, 24 S.W .3d 274, 281 (Tenn. 2000) (citing Ashby v. State, 139 S.W

. 872, 875 (Tenn. 1911)). Some corrobor ating evidenc e is requir ed which, inde pendently of the confe ssion, tends to establish the corpus delicti of t he offense charg ed. I d. Howeve r, whe re the re is a c on fe ssi on , th e c or

ro bo rativ e e vid e nc e “ ne e d no t be a s c on vin c ing a s the e vid e nc e ne c e ssa ry to establish a cor

pus delicti in the absence of any confe ssion.” Ricketts v. State, 241 S.W .2d 604, 606 (Tenn. 1951). The corroborating evidence is sufficie nt to sustain a conviction if “it tends to connec t the defendant with the commi ssion of t he offense, although the evidenc e is slight, and entitled, when standing by itself, to but littl e consideration.” I d.; see a lso Sm ith, 24 S.W .3d at 281. “A c onfession may sustain a con v i ct i on wher e ther e is other e vidence sufficie nt to show the commission of the crime by someone.” Tay lor v. State, 479 S.W .2d 659, 661-62 (Te nn. Crim. App. 1972).

I n th e pr e se nt c a se , the app e lla nt’ s c on fe ssi on wa s c or ro bo rate d b y

nu me ro us me a ns . F ir st, the appe llant told Age nt Wi lkerson that on the night of the shooting, he was in an apa rtment complex and nea r the G building . J ennife r B lackwe ll testified that she l ived i n the G building a nd that about 6 : 0 0 p

. m

. , s h e g a v e a c i g ar e t t e t o a yo u n g A f r i c a n

- A m e r i c a n m a l e

. B l a c k w e l l w a s n i n e t y t o n i n e t yfive pe rce nt certain that the male wa s the appe llant. Second, the a ppellant told Ag ent Wilkerson that he wa lked to the A building. Way ne L awson testified tha t he lived i n apartment number A- 9 and that th e vic tim wa s sh ot in fr on t of his apa rt me nt. Th ir d, the app e lla nt t oldthe po lic e that a t th e tim e of the shooting , he wa s standing in the pa rking lot and that the victim was standi n g n ea r the sidewalk. L awson testified tha t when he first saw the victim, she was ly ing partially on the sidewa lk, and the e vidence established that a she ll casing was found in the parking lot. Fourth, the appellant stated that he w as about seve n fe et fr o m t h e victim at the time of the shooting, a nd Don Carman testified that no soot was found on the victim’s clothing, indica ting that she was shot f rom a distance of more tha n three or four fee t away . Fifth, the a

ppellant stated that the gun was a nine mil limeter12

pis tol , a ndOf

fi c e r A pr il Sa mol te sti fi e d tha t the sh e ll ca sin g re c ov e re d fr om the c ri me sc e ne wa s a nin e mil lim e te r. F ina lly , t he app ell a nt t oldAg e nt Wi lke rs on that he sh ot the vic tim a s th e vic tim turned awa y

from him, and the e vidence shows that the victim was shot in the back. We c onclude that the appe llant’s confe ssion was sufficie ntly corr oborate d by

the testimony of other w itnesses and, the re fo re , th a t th e e vid e nc e is s uf fi c ie nt t o s us ta in the jury ’s fi nd ing that th e app e lla nt i nte nd e d to

ro b th e vic tim

.

III. Conclusi on

B a se d u po n th e re c or d a ndthe pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nts of

the tr ia l c ou rt

.

___________________________________ NORMA McGEE OGLE, J UDGE