### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te m be r 9, 200 8

STA TE OF TEN NES SEE v. MA RKE SE A LEX AN DER BR OOKS

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 05-05703 Chris B. Craft, Judge

No. W2007-02595-C CA-R 3-CD - F iled October 21, 2008

The de fenda

nt, Marke se Alex ander

Br ooks, was convic ted by a Shelby County Criminal Court jury of first deg ree felony

murder a nd attempted espe cially

ag g ravated robbe ry

and wa s sentence d by

the trial court to concur

rent terms of l ife and ten y ear s, respe ctively . I n a timely appea l to this court, he challeng es the suff

iciency of the c onvicting e vidence and argues that the trial cour t erre d in denying his moti on to suppress his statement to the police a nd in allowing ina dmissibl e hea rsay testimony from a State’ s witness. Following our re view, we aff irm the judg ments of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J ., delivere d the opinion of the court, in w hich N OR MA M C G EE O G LE and C A M I LLE R. M C M UL L EN , J J ., joined.

Paul K. Guibao and Matthew S. L y ons, Memphis, T ennesse e, for the appellant, Marke se Alexander B ro ok s.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; Da

vid H. F ind le y , A ssi s t a

nt A tt o r n e y Ge ne ra l; Wil liam L

. Gibbons, District Attorney Gene ral; and D avid Pritchard a nd Dea n DeCandia , Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

On the e ve nin g of Janu ary

17 , 2 00 5, fi ft

y -t hr e e -y e a r- old Al be rt Cov ing ton

wa s sh ot t o d e a th as he strug g led with a shotgun- wielding assailant who was attempting with two ac complices to rob the L ittle St ar G roce ry

at 547 Vanc e Ave nue in Memphis, wher e the victim was e mploy ed as store

mana g e r. Th e sixte e n- y e ar- old de fe nd ant, ho sp ita lize d that same e ve nin g fo r sh otgun w ound s,

a d mi tt e d h is inv o lv e me n t t o p o li c e in anin it ia l o r a l i n te r

v ie w c o n d

u c te d a t t h e h o s p it a l a nd in a written statement g iv en the next day at the homicide of

fice . He a

nd two codef

endants, Clare nce-2-

Anthony Ab ernathy

and F rank D eAng elo Tay lor, wer e subseque ntly

indicted for the first deg ree felony murder a nd attempted espe cially

ag g ravated robbe ry

of t he victim. The c odefe ndants’ ca ses
wer e eve ntually

sever ed, and the defe ndant was trie d and convic ted of the of fense s in J uly

2007.

Suppr e ssi on H e ar ing

Prior to trial, the defen d ant filed a motion to s uppress his statements to police. At the November

20, 2006, suppression hea ring , Serg eant T.J. Hel l d o rfe r of the Me mphis P olice De pa rtme nt’ s H omi c ide B ur e a u te sti fi e d th a t he and Se rg e ant Mill e r int e rv ie we d the de fe nd a nt i n his hospital room on J anuar y 18, 2005. Kim Weiss, a gua rdian a d litem from j u v en i l e co u rt , was pr e se nt f or the int e rv ie w at hi s r e qu e st b e c a us e the of fi c e rs ha d be e n uns uc c e ssf ul in the ir a tte mpt s to rea ch the de fenda n t ’s parents or g uardia n. After asce rtaining from the attending nur se that the defe ndant had suff

ere d only a superf icial wound and wa s not under the influe nce of any drug s, he

and Se rg e ant M ill e r w e nt ove r the Mir and a wa rn ingwi th h im, havin g him fi rs t r e a d a

po rt ion of it aloud to ensure themselves of his ability to rea d. Weiss then w en t over the war ning w ith the defe ndant as we ll, readingeac h line “ver y slowly ” and explaining the rig hts to the def endant a s she went throug h th e d o cu m en t

. The de fenda nt exhi bited no difficulty

rea ding, indicated that he wa s willing to talk to the officers, and signe d the waiver of rig hts form. He then g ave a n oral stateme nt admitting his involvement in the shooting.

Se rg e ant H e lld or fe r te sti fi e d th a t th e de fe nd ant a g re e d to have his or a l st a te me nt r e du c e d to writing in a follow-up inter view that took place the n ex t d ay at the homicide off ice. B efor e beg inning the interview, he went over the Miranda rig hts with the defenda

nt ag ain and the de fenda

nt signe d another

waiver of rig hts form indicating that he wa s willing to talk to the office rs about the crimes. Ne ither the guardia n ad litem nor the de fenda n t ’s p ar ent or gua rdian wa s prese nt for the

se c on d in te rv ie w. Ho we ve r, duri ngthe int e ri m be tw e e n th e int e rv ie ws , p oli c e of fi c e rs ha d b e e n in

c on ta c t by

te le ph on e wi th b oth

the de fe nd ant’ s mo the r, wh o li ve d in Ca lif or nia , a nd wi th h is a

un t, who was his Memphis g uardia n. Serg eant Helldorfer testified t hat each woman g ave he r conse nt for the offic ers to spea

k further with the defe nd an t o n t h e b asis that they did not “want him to take a char g e alone .”

Serg eant He lldorfer

testi fied that the de fenda nt review ed his written stateme nt and then ini tia le d e a c h pa g e and signe d the e nd of the do c ume nt at 2:0 3 p.m. on Janu ary 19 , 200 5. He sa id the de fe nd ant g a ve no ind ic a tio n d ur inge ith e r i nte rv ie w t

hat he wi sh e d to sto p ta lki ngor wa nte d to have a n attorney or par ent pre sent. The defe ndant appea red to understand wha

t he was doingand did not a p p e ar to b e u n d e r

th e in f lu e n c e o f an y in to xic an ts

. O nc r o s s

- e xa mi n a ti o n , Se r g eant He lld or fe r a c kn ow le dg e d th a t th e g ua rd ian a d li te m wa s no t an atto rn e y and that he ne ve r s po ke wi th the def endant’ s phy sician about the de fenda nt’s medical c ondition.

At the conclusion of the hear ing, the trial court noted, among other things, that the def endant was within two wee ks of his seventee nth birthday at the time the stateme nts we re m ad e, had completed the t en t h g rade , had an I .Q. of 95, a nd was e mploy ed at the F amily Dollar Store. Apply ing the t otality

of the c ircumstance s test as outlined in St ate v. Callaha n, 979 S.W .2d 577-3-

(Tenn. 1998) , the trial court concluded that the statements had be en fr eely and voluntarily

made a nd

acc ording ly

denied the de fenda

nt’s motion to s uppress.

Tr ial

Ella Ne al, the victim’s half- sister, testified that she wa s workingat the L ittle St ar G roce ry with the victim on J anuar y 17
, 2 0 0 5. She said that the victim had bee n robbed in the pa st and conseque ntly

car ried a handg un in his back pocket when he worked. At about 7:30 p.m., three young men enter ed the store at a time whe n there wer e no other customers present. Two stay ed in the fr ont wh i l e t h e t h i rd wa l k ed al l t h e wa y ar o u n d t h e s t o re b ef o re an n o u n ci n g t h at h e d i d n o th av e e n o u gh money . The thre e men left but r eturne d twice more. The third time they enter ed the store , one stood in f ro nt o f t he dr ink bo x, on e sto od by the do or , a

nd the thi rd a pp ro a c he d th e vic timand sa id, “ Th is is a stick up, g ive me y o u r m oney .” When the victim replied that he did not have a ny money , the man pulled o u t a s aw ed-of f shotg un. The victim g rabbe d it, and a strug g le betwe en the two men ensued. D uring that time, Neal r an to t h e p h o n e, dialed 9-1- 1, dropped the phone, ra n behind the potato chip ra ck, and “ hit the floor.”

Nea l tes t i fi ed t h at s h e was “ curle d up in a knot” on the f loor when she hear d a ser ies of g unshots, followed by

a moment of silence and two loud moans fr om the victim. She lay still , too frig htened to move, until she hea rd other c ustomers coming into the store, at which point she g ot up and called 9-1-1 ag ain. L ater , afte r the police had re sponded, she trie d to open the ca sh reg ister and found that the dra

wer was jammed shut. On cross-examination, she ac knowledg ed that she ha d po sit iv e l y i d e n t i f

i e d o n e o f t h e r o b b e r s f

r o m a p h o t o g r a

p h i c s p r e a d s h e e t b u t h a d b e e n u n a b le to identify the def endant.

Ni ne te e n- y e ar- old

Cla re nc e Ab e rnat hy te sti fi e d th a t th e c ha rg e s a g a ins t hi m w e re sti ll pending and that he w as cur rently housed in the jail awa iting trial. He said that on the morning of J anuar y 17, 2005, h e was play ing ba sketball in the Foote Homes ar ea of South Memphis wit h the defe ndant and Fra

nk Taylor, both of whom he knew from the ne ighbor hood, when Ta

y lor said that he wa nted to rob som eone. Aber nathy stated that he joking ly responde d that they

should rob a store, immediately

letting the othe rs know that he was only kidding. Taylor, howeve r, said that he wa s “for

rea l” and looked at the defe ndant, who “nodde d his shoulder s” in ag ree ment. Two other young men from th e n e ig hb o r

h o o d
, E lg ie B u s e y an d D e an dr e Cr o w d e r , w e r e p r e s e n t an d o v e r h e ar d the

conver sation.

Aber nathy testified that he told Tay

lor and the defe ndant t hat they wer e cr azy

and we nt home. L ater that same da

y , he met up with them ag ain at “T he Ye llow Store,” a ne ighbor hood g roce ry , and

acc omp an ie d th e m to F o o te H o me s , w h e r e th e y s a t in th e g a ze b o u n ti l e ar ly e v e n in g when the defe ndant sug g ested that they g o to the L ittle St ar G roce ry

. Ac co rd ing to Abe rnathy , neither the defe ndant nor Ta

y lor had said a

ny thing more about robbing any one. He s aid t hat he, B usey , and Cr ow de r w a lke d w iththe de fe nd ant a nd Ta y lor to t he sto re and

that B us e y re ma ine d outs ide wh ile the re st o f t

he m w e nt i n. On c e ins ide , Abe rn a thy g ra bb e d a dr ink fr om t he dr ink bo x, c arr ie d it

to the c ounte r, and

wa s in the pr oc e ss of re a c hin g fo r his mon e y to pa y wh e n he he ard

the de fe nd a nt,-4-

who had a pproac hed the victim in the bac k of the store , say , “This is a stick up.” He then hear d Nea l say , “Don’ t shoot.” When he looked over, he sawthe def endant standingbehind the victim with a shotgun at the victim’s back.

Aber nath y testified that the victim turned a round and trie d to gr ab the shotg un from the de fe nd ant. As the tw o w re stl e d o ve r t he we a po n, Ta y lor be g an sho oti ng a .2 2 hand g un a t th e vic tim

. Next, th e v i ct i m grabbed the shotg un from the de fenda nt, the defe ndant g rabbe d the victim’s g un from his bac k pocket, the de fenda nt shot the victim with the victim’s handg un, and the victim shot the def endant in the c hest with the defe ndant’s shotg un.

After the victim shot the defenda nt, Abernathy

fled to a vaca

nt apar tment, a re g ular g ather ing spot, followed closely

by the others. When the de fenda nt came in, he kept re peatingthat he had be en hit and that “it ain’t g o rig ht.” Aber nathy stated that he went home at that point but di d not call the police bec ause he was afra id someone would harm him or hi s family if he did. He c laimed that he had bee n unawa

re that the defe ndant and Tay lor had their r espec tive wea pons with them when they went to t he st ore, although he had seen both of t hem wit h the weapons in the past. He said he was

ar r e s t e d t w o d ays l a t e r

an d g a v e a s t a t e m e n tt o p o l i c e t h a tw a s c o n s i s t e n tw i t h h i s t r i a l t e s t i m o n y. Finally , he stated that he was te stify ing a g ainst the defe ndant bec ause t h e v i ct i m , whom he had known as “Unc le Sonny ,” had be en kind to him. On cross-e x amination, he denie d that he had be en promised any

thing in exchang e for

his testimony

and reiterate d that he had known nothing a bout the plan to rob the store

.

Of fi c e r N a tha

n N e wm an o f the Me mph is Pol ic e De pa rtme nt te sti fi e d that, w he n h e and his partne r re sponded to the sce ne, they found the victim ly ing on his stomach on top of a sing le-ba

rre l shotgun w ith blood seeping out from under neath his body

.

Of fi c e r R and a ll F ull e r o f t

he Me mph is Po lic e De pa rtme nt, wh o w a s a ssi g ne d to the c ri me
scene investigation unit i n J anuar y 2005, identified the we apon re cover ed fr om the store as atwelveg aug e shotg un and the c asing rec overe d from it as a twelve- g aug e “field-load, possibl y some ty pe
o f b ir d

- s h o t. ” H e a ls o id e n ti f ie d a w e a p o n th a t w a s f

o u n d o n th e g r o u n d

o u ts id e th e s to r e a s a

s ixshot .357 Mag num revolver containing three live and thre e spent rounds.

Kelley Moore, a para

medic with the Memphis F ire Depa rtment, testified that the victim was dead w hen she r esponded to the sc ene. She said that approximately twenty minutes later, her dis patc he r c a lle d f

or an a mbu lanc e to b e se nt t o Fi re Statio n 8 on Mis sis sip pi B ou le va

rd in r e sp on se to a wa lk-in guns ho t wou nd . Wh e n s he and he r p art ne r r e sp on de d to tha

t sc e ne , lo c a te d o ne -h a lf mile from the L ittle St ar G roce ry , they found the defe ndant with what appe are d to be a supe rficia l g unshot wound to the chest ca used by “bird spra

y from shotgun pellets.”

Offic er Ver

non VanB uren of the Memphis Police Depa rtment, a c rime sce ne investig ation office r, identified, a

mong othe r thing s, a California ide ntification ca rd in the def

endant’ s name that was g iven to him when he re sponded to the Mississippi Boule vard f ire station on J anuar

y 17, 2005.-5-

L ieutenant Ma

rk Miller of the Me mphis P olice De partment’s homicide burea u testified that

on the mor nin g of Janu ary 18 , 2 005, Se rg e ant L

uc ke tt a ssi g ne d h im a

nd Se rg e ant H e lld or fe r t o interview the defe ndant in h i s h o s p i t al room at the Reg ional Medica l Center. He descr ibed the int e rv ie w pr oc e ss, inc lud ing the ro le pla y e d by the g ua

rd ian a d li te m, a

nd sa id t hat th e de fe nd ant t old them that he wa s sh o t d u ri n g the robbe ry , in which “B uck” a nd another

person he did not know participated. B eca

use th e o ff

i cer s did not have the e quipment or personne l to transcribe the statement at the hospital, they told the defendant that he would be broug ht to their office to give a formal state ment upon his relea se fr om the hospital.

The ne x t day

the def endant was rele ased from the hospital, taken into custody , and broug ht to the homicide offic e, whe re he was a g ain advised of his rig hts and once aga in signe d the waive r of rig hts form befor e g iving the se cond stateme nt, which was transcribe d. L ieutenant Miller sa id that the def endant’ s story

chang ed slig htly

in the written st atement, in that he ide ntified his acc omplices as “F rank” and “Woo,” instea d of “B uck” and an unknown i ndividual. He state d that the def endant told them that he, Fr ank, and Woo form u l at ed t h e p lan for r obbing the g roce ry store af ter talking about how they

neede d money
, that Fr ank had a .22 pistol with him, a nd that they

stopped and g ot a shotg un, which the de fenda nt had with him during the robber y

. The po rti o no f

th e d e f e n d an t’ s s tate me n t i nw h ic h h e d e s c r ib e d th e r o b b e r

y it s e lf r e a d s as fo llo ws :
Woo went in first, Iwent in behind Woo and Fr ank came in last behind me. Me and Woo walke d to the drink machine and Woo gra b b ed a d ri nk. He wa lked back up to the f

ront. Iup the g aug e on the g uy and he g rabbe d it. W e we re w restling fo r l e ss t ha n tw o mi nu te s. Th e g uy tur ne d ar ound and

he wa s f a c ingawa y fr om m e while bot h our hands wer e up in t he air holding the gun. Fr ank wa s still standing by the door. When me and the guy had our ha

nds up in the air on the gun that is when Fr ank shot. Iam not sure how ma ny times, may

be four or five. The g uy

was a bout to r e a c h f or the .3 57 , b ut I

g ra bb e d it and he too k th e sh otgun

fr om m e

. He sh ot m e with the shotgun in my

chest. When he hit me with the shotg un, the .357 went of f but it mi ssed him. Then we all took off and r an. I g ot outside and I dropped the .357, jumped the g ate, then I

fell bec ause I

rea liz ed I

had b een hit. I

looked up and

ever y body was g one. F rom there Iwalked to the f ire station.

L ieutenant Miller testified that, beg inning with the f irst interview, the de fenda nt was advised of his rig hts a total of four times be fore the written statement was made. He sa id that the g uardia n ad litem was not pre sent for the second state ment but th at S erge ant Luckett had ta lked to the de fe nd ant’ s mo the r a

nd ob taine d h e r p e rm iss ion fo r t he m to int e rv ie w the de fe nd ant. On c ro ssexamination, he testified that an attempt wa s made to con t ac t t h e d efendant’s pa rents or guardia

n befor e the f

irst interview but that it was not done by himself.

Dr. Migue l L aboy
, a medical examiner employ ed with the Shelby County For ensic Medic al Center, whic h perf

ormed the a

utopsy of the victim’s body
, testified that the victim sustained three-6-

g un sh ot wo un ds : a g un sh ot wo un d to the le ft sid e of the c he st that dama g e d his he art and lun g s; a g unshot wound to the rig ht g roin reg ion that frac tured his pelvis; and a gunshot wound to the back of the le ft fo re arm . H e sa id t

hat th e vic timpr ob a

bly die d w ith in s e c on ds of

the g un sh ot w ound

to the c h e s t, w h ic h w a s c o n s is te n t w it h a w o u n d c a

u s e d b y a h ig h v e lo c it

y w e a p o n s u c h a s a .357 handg un. He state d that the other two gunshot wounds were not consistent with ones fired by a hig hvelocity wea pon.

T h e d e f e n d an te l e c t e d

n o tt o t e s t i f

y b u t p r e s e n t e d t w o w i t n e s s e s i n h i s b e h a l f : L e s l i e B a i l e y, his mother; and Cathy

McNamee Wilson, his aunt. Ba iley testified that she spoke with the police a couple of day s afte r t he incident but did not rec all g iving them permission to take a statement fr om the def endant. Wilson testifie d t h at s o meone f rom the police de partment tele phoned to ask he r questions about the def

endant but that she did not g ive anyone per missi o n t o speak w ith or take a statement fr om him.

I n r e bu tta l, t

he State pr e se nte d L ie ute na nt Jame s L

uc ke tt o f t he Me mph is Po lic e De pa

rtme nt, wh o te sti fi e d th a t in

Janu ary 20 05 he wa s a

se rg e a nt a ssi g ne d to the ho mic ide bure a u a nd the c a se coordinator for t h e L ittle St ar G roce ry murder inve stigation. He said that both the def endant’ s mot he r an d aunt ca lle d him on the a ft e rn oo n af te r the de fe nd ant’ s initi a l inte rv ie w at th e ho sp ita l. Acc ord in g to L ie u te n an t L u c k e tt , b o th

w o me ng av e h im

p e r mi s s io nto ta lk

w it h th e d e f e n d a nt “bec ause the y

wanted him to tell [t he police] who was with him, so he wasn’t doing this by himself.”

I. De nia l of M ot ion to Suppr e ss S ta te m e nt

Th e de fe nd ant f

ir st c on te nd s that the tr ia l c ourt e rr e d in de nyinghis mot ion

to s up pr e ss h is written statement, a

rg uing that under the totality of the c ircumstance s, which included his y outh, lack of a pr ior criminal re cord, r ece nt gunshot wound with its attendant phy sical and mental s tresses, a nd absenc e of a

pare nt or g uardia

n, the t rial court should have f ound that the statement wa s involuntary and unknowing

. The S tate arg ues t hat t he evidence does not preponde rate ag ainst the trial cour t’s f in d in g s th a t t

h e d e f e n d an t kn o w in g ly
, in te ll ig e n tl y , an d v o lu n ta r il y w a iv e d h is M ir an d a

r ig h ts

. We ag ree with the State.

When this court reviews a trial court’s ruling on a mot ion to suppress evidenc e, “[q]uestions of c re dib ili ty

of the wi tne sse s, the we ig ht a nd va lue of the e vid e nc e , and re so lut ion of c on fl ic ts i n the evidenc e are matters entrusted to the trial judge as the trier of fa ct.” State v. Odom, 928 S.W.2d 18 , 2 3 ( Te nn . 1 99 6) . T he part y pr e va ili nga t th e su

pp re ssi on he ari ngis a ff

or de d th e “ str on g e st leg itimate view of the e vidence and all re asonable and leg itimate infere nces that may be dra wn from that e vid e nc e .” State v. Ke ith , 9 78 S.W. 2d 86 1, 86 4 ( Te nn . 1 99 8) . T he fi nd ing s o f a tr ia l c ourt

in a suppre ssion hearingare upheld unless the evidenc e preponde rate s ag ainst those finding s. See id. Ho we ve r, the a

pp lic a tio n o f t

he law t o th e fa c ts f

ound by the tr ia l c ourt

is a qu e sti on of law an d is revie wed de novo . See State v. Ye arg an, 958 S.W.2d 626, 629 (Tenn. 1997).

Both the U nited States and Tenne ssee Constitutions protec t a def endant f rom being

c o mp e l l e d

t o g i v e e v i d e n c e a g a i n s th i m s e l f

. U

. S

. C o n s t

. a m e n d

. V ; T e n n

. C o n s t

. art

. I, § 9

. In-7-

Miranda v. A rizona, 3 8 4 U. S. 436, 471-75, 86 S. Ct . 1602, 1626-28 (1966) , the United States Supreme Court held that a defe ndant’s stateme nts made duringa c u s t o d ial interrog ation are ina dmi ssi ble a t tr ia l un le ss t he State e sta

bli sh e s th a t th e defe nd ant wa s in fo rm e d o f h is r ig ht t o
rem ain si lent

and his ri g ht t o c ouns e l and

that he kn ow ing ly

and vo lun tari ly

wa ive d th os e ri g hts

. Whether the de fenda

nt made a voluntar

y , knowing , and intelligent waiver of those rig hts depends “‘upon t he par

ticular fa cts and c ircumstance s surrounding that case , including the backg round, experience
, and conduct of t he accuse d.’” Edwar ds v. Arizona, 451 U.S. 477, 482, 101 S. Ct . 1880, 1884 (1981) ( quoting Johnson v. Ze rbst, 304 U.S. 458, 464, 58 S. C t. 1019, 1023 (1938)).

Tenne ssee c ourts use the fe dera l “totality -of- the-c ircumstance s test” to deter mine whether a def endant ha s knowing ly , inte l l i gentl y , and voluntarily waived his Mira

nda rig hts. St ate v. Callahan, 979 S.W .2d 577, 581-82 (Tenn. 1998). When a naly zing the waiver of a juv en i l e under the tot a lity -o f- the -c ir c ums tanc e s te st, the fo llo wi ngfa c tor s sh ou ld b e c on sid e re d:

(1) c onsideration of a ll circumstance s surrounding the interrog ation includin g the juv e nil e ’s a g e , e xpe ri e nc e , e du c a tio n, and int e lli g e nc e ;
(2) the juvenile’s capa city to understand the Mira

nda wa rning s and the c onsequenc es of the wa ive r;
(3 ) t he juv e nil e ’s fa

mil iari ty wi th M ir and a

wa rn ing s o r t

he a bil ity to r e a d a nd wr ite in t he langua g e us e d to g ive the wa rn ing s;
(4 ) a ny int oxic a tio n;
(5) a ny mental disease , disorder, or reta rdation; and

(6) the pr esenc e of a

pare nt, gua

rdian, or inter ested a dult.

I d. at 583. While courts are require d to use specia l car e whe n s cr u t iniz ing a juvenile’s purpor

ted waiver , “no sing le fa ctor such as mental c ondition or education should by itself rende r a c onfession

unco n s t i t u t i onal abse nt coer cive police activity .” I d. (citing Colorado v. Connelly , 479 U.S. 157, 167, 107 S. Ct . 515 (1986))

.

Th e juv e nil e de fe nd ant in this c a se wa s a lmo st se ve nte e n y e ars old , h a d c omp le te d th e te nth g rad e , te s te d in th e a v e r a g e r an g e o f in te ll e c tu a l f u n c ti o n in g , an d w a s e mp lo y e d

. H e had de mon str a te d his ab ili ty

to r e a d a nd wr ite and , w ith in t

he sp a c e of

tw o d ay s, be e n a dv ise d o f h is Miranda r ights a total of four times, including by the guar dian ad litem who car efully revie wed a

nd

e xpla ine d th e wa

rn in g an d r ig hts to h im. Hi s g un sh ot w ound wa s su pe rf ic ia l, t he a tte nd ingnurs e repor ted that he wa s not under the influe nce of any drug s during the interview at the hospital, and he had a lrea dy

been r elea sed fr om the hospital by the time the w ri tten statement wa s made the fo llo wi ngda

y . F ina lly , a lth ou g h ne ith e r his mot he r nor a un t wa s pre se nt fo r t

he wr itt e n s ta te me nt,-8-

the of fi c e rs ’ t e sti mony

a t th e su pp re ssi on he ari ngand

tr ia l wa s th a t th e wo me n h a d g ive n th e ir consent for

the offic ers to talk to the def endant at the second inter view.

The de fenda

nt asserts that L ieutenant L uckett “could not offe r convincing proof at trial that he wa s the investigator who obtained pa renta l permission to procee d w it h th e [d e f e n d a nt’s] i nterview

on Janu ary 19 , 2 00 5. ” I n s up po rt , h e c ite s th e fo llo wi ngc ro ss- e xami natio n te sti mony :
Q. [I ]f [L ie ute na

nt M ill e r] s ta te d th a t y ou we re the on e wh o ma de tho se cal ls, in oth e r w or ds , in iti a te d th os e c a lls , w ou ld h e be inc or re c t?

A. I don’t reme mber makingthem, but Idon’t reme mber that I didn’t.

Q. B ut y ou stated ea

rlier - -
A. We both may

have tr ied to make them.

Q. But, y ou did state earlier, at least t he testi mony that y ou g ave to the repre sentative of the state , w a s th a t you

de le g a te d th a t r e sp on sib ili ty to t he m; c or re c t?

A. That’s true

.
The de fenda

nt contends that “[i] n light of the combined inconsistent testimony of Off icer s Miller, Helldorfe r, and L uckett, it is appare nt that nobody actua lly o b t ai n ed permission to take a statement fr om [ the d ef

en d ant] from either

his [ m] other or his a

unt.” The tra

nscript, howeve r,
reve als that the porti on of L ieutenant L uckett’s cross-examination testimony on which the de fenda nt relies wa s in refe renc e to which of fice r had attempted to contact the de fenda nt’s mother and a

unt prior to the first intervie w. L ieutenant L uckett was unequivoca l in his testim ony that the women ha d g ive n the ir c on se nt, pr ior to the se c on d int e rv ie w, fo r the of fi c e rs to sp e a k fu

rt he r wi th the de fe nd a nt. Moreove r, as the State points out, “the admissibi lity of a juve nile’s conf ession is not dependent upon the pr e se nc e of

his pa re nts a t the int e rr og a tio n. ” State v. Carr oll , 3 6 S. W.3 d 8 54 , 8 64 (T e nn . Cr im. App. 1999). Base d on the t otality of t hese circumstanc es, we conclude that the evidenc e does not p r e p o n d e r a t e a g a i n s tt h e t r i a l c o u rt ’ s f i n d i n g s t h a tt h e d e f

e n d a n tm a d e h i s s t a t e m e n tkn o w i n g l y, int e lli g e ntl y , a

nd vo lun tari ly . A c c or din g ly , w e a ff ir m th e de nia l of

the de fe nd ant’ s mo tio n to suppress.

II. State’s Re buttal Pr oof

The defe n dant next contends that the trial cour t erre d by allowing L ieutenant L

uckett’s

re bu tta l te sti mony

a s to wh y the de fe nd ant’ s mot he r and a un t g a ve the ir

c on se nt f or the of fi c e rs to talk to the defe ndant about the c rimes, ar guing that it constit uted inadmissible and pre judicial hear say . The State argues that the evidenc e was not of fer ed to pr ove the truth of the matter asser ted but instead t o show the women’ s motive for g iving their consent a nd, as such, wa s proper ly

admitted-9-

by the tr ia l c ourt a s no n- he ars ay e vid e nc e re le va nt to the iss ue of wi tne ss c re dib ili ty

. We a g re e wi th the State.

Hea rsay is define d as “a statement, ot her than one made by the declara nt while testifying at the trial or he aring , offe red in e vidence to prove t h e truth of the matter asse rted.” Tenn. R. Evid. 801(c) . As a g ener al rule, hear say is not admissible at tr ial unless it f alls under one of the e x ceptions to t he rul e again st he ars ay . T e nn . R. Ev id. 80 2. “ Th e de te rm inatio n o f w he the r a state me nt i s hear say and whe ther it is admissible through a n exception to th e hearsay rule is left to the sound dis c re tio n o f t

he tr ia l c ourt .” State v. Sto ut, 46 S.W. 3d 68 9, 69 7 (T e nn

. 20 01 ). Ac c or din g ly , w e wi ll not reve rse the tr ial court’s r uling on this issue absent a clea r showing of an a

buse of discr etion.

Duri ngthe State ’s c a se -i n- c hie f, the tr ial c ourt su sta ine d th e de fe nd ant’ s o bje c tio n to proposed similar testimony by L ieutenant Miller on the basis that it would constitut e pre judicial and non-probative opinion testim ony by the def endant’ s pare nt as to his guilt. Howeve r, by the time that L ieutenant L

uckett’s r ebuttal test i m o n y was proposed, the def endant’ s mother and a

unt had ea ch testified, deny

ing that they

had g iven their consent for of fice rs to talk to the defe ndant. Fur thermore
, it had become clea

r to the trial cour

t that neither woma

n had spoken w ith the d ef endant about the crimes pr ior to their conve rsations with L ieutenant Luckett. Ba sed on this, the trial court r uled that the e vid e nc e wa s a dmi ssi ble to i mpe a c h th e wi tne sse s’ c re dib ili ty :

But since neither one of them spoke to him befor e they t old the police they

wa nte d h im t o g ive a

state me nt, the n w hat I ’l l do is, I ’m g oin g to a llo w the state to put that evidence on and then I am g oing to g ive a c urative instruc tion to the jury that they are not to dr aw any opinion, if they believe that testimony
, they ’re not to dr aw any opinion that any

of the fa m i l y

members thoug ht, or had a ny opinion about the g uilt of the defe ndant, bec ause the y had not di scussed any

thing about this and they

wer e just merely

talking to the police

.

. . . .

I also will put in t he jury

char g e that I

rea d to the jury

that prior inconsistent statem ents are not to be considere d substantive evidenc e, but only to evaluate the

cre dibilit y

of the witnesse s.

We conclude that there w as n o er ro r i n the trial cour t’s admission of the evidenc e. The evidenc e wa s proper ly

admitted to i m p each the witnesses’ cre dibilit y and the tria l court issued an appropr iate limiting instruction to the jury to that effe ct.

III. Su ff iciency of the Evid ence

As his fi na l is su e , th e de fe nd ant c onten ds that th e e vid e nc e wa s in su ff ic ie nt t o s us ta in h is

c on vic tio ns fo r f

ir st d e g re e fe lony

mur de r a nd a tte mpt e d e sp e c ia lly

a g g ra vate d rob be ry . He a sse rt s that Aber nathy ’s t estimony was not only biased but also uncorr oborate d by any evidenc e other

than-10-

the de fe nd ant’ s e rr on e ou sly a dmi tte d sta te me nt to pol ic e , a s th e vic tim ’s sis te r, Ne a l, w a s una ble to identify him as a per

petrator of the c rim es. The State a rg ues that Abe rnathy ’s cr edibility was a n issue for the jur

y to determine a

nd points out t hat his testimony was c orrobor ated by

the def endant’ s shotgun w ound, for whic h the def endant offer ed no other ex planation. The S tate further a rg ues that even if the sec ond statement should have be en suppre ssed, the def endant’ s fi rs t o ra l statement established his prese nce an d p ar t i cipation in the cr imes. The State conte nds, theref ore, that the

e vid e nc e wa s mo re tha

n s uf fi c ie nt t o s us ta in t

he de fe nd ant’ s c on vic tio ns

. On c e a g a in, we a g re e wi th the State.

When the sufficie ncy

of the c onvicting e vidence is challeng ed on appeal, the r eleva nt qu e sti on of the re vie wi ngc ourt

is “ wh e the r, a ft e r v ie wi ngthe e vid e nc e in the lig ht mos t f a vo ra ble to th e p r o s e c u ti o n , anyratio na l tr ie r o f f a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me bey ond a re asonable doubt.” J ackson v. Virg inia, 443 U.S. 307, 319, 99 S. C t. 2781, 2789 (1979);

see a lso Tenn. R. A

pp. P. 13( e) (“F indings of guilt in criminal actions whether by the trial cour

t or jur y sh a ll b e se t a sid e if

the e vid e nc e is ins uf

fi c ie nt to su

pp or t the fi nd ing s b y

the tr ie r o f f

a c t of g uil t bey ond a re asonable doubt.”); State v. Evans, 838 S.W.2d 185, 1 9 0 -9 2 (T enn. 1992); S tate v. An de rs on , 8 35 S.W. 2d

60 0, 60 4 (T e nn

. Cr im. Ap p. 19 92 ). Al l qu e sti on s in vo lvi ngthe c re dib ili ty of wit nesses, the weig ht and value to be g iven the evide nce, a nd all fac tual issues are resolved by the trier of fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdic t by the jury , approve d by

the trial ju d ge, accr edits the testimony of the witnesse s for the State a nd resolves a ll conflicts in favor of the theory of the State.” State v. Gra ce, 493 S.W.2d 474, 476 (Tenn. 1973). Our supr eme c ourt stated the r ationale f or this rule:

This well-settled rule rests on a sound f oundation. The t ri al j u d g e and the jury see the witnesses fa ce to fac e, hea r their testimony

and obser

ve their de meanor on the stand. Thus the trial judg e and jur y are the prim ary instrumentality of justice
t o d e t e r m i n e t h e w e i g h tan d

c r e d i b i l i t y

t o b e g i v e n t o t h e t e s t i m o n y o f w i t n e s s e s

. In the trial for

um alone is there human atmosphere and the totali t y o f t h e evidence

c ann ot b e re pr od

uc e d w itha

wr itt e n r e c or d in

thi s Co ur t.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 ( 1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . A jury conviction re moves the pre sumption of innocenc e wi th which a defe ndant is initi ally

cloake d and re place s it with one of g uilt, so t hat on app eal, a convicted defe ndant has the bur den of demonstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

. First deg ree felony

murder i s “[ a] killing of a nother c ommitt ed in the per petration of or

a tte mpt to p e rp e tr a te any

fi rs t de g re e mur de r, a c t of te rr or ism , a

rs on , r a pe , r ob be ry , b ur g lary , th e ft
, kidnapping , ag g ravated child abuse , ag g ravated child neg lect or airc raf t pir acy .” Tenn. Code Ann. § 39-13-202( a)( 2) (2 0 0 6 ). The me ntal state re quired for conviction of fe lony

murder is the intent to commit the underlying of fense . I d. § 39-13-202( b).-11-

Especia lly

ag g ravated robbe ry

is robbery

that is acc omplished with a deadly weapon and wher e the vict i m suffer s serious bodily injury . I d. § 39-13-403( a). Robber y is “the intentional or knowing theft of proper

ty from the person of

another by violence or

putting the pe rson in fea

r.” I d. 39-13-401( a).

A pe r s o nc o m m i t s c r i m i n a l a t t e mp tw h e nt h e p e r s o n , a c t i n g w i t h t h e k i n d o f c u l pabil ity oth e rw ise re qu ir e d f

or the of fe ns e :
(1) Intentionally eng ag es i n action or cause s a re sult that would constitut e an offe nse, if the c ircumstance s surrounding the conduc t were as the p erson believes the m to be ;
(2) Ac ts with in tent to cause a re sult that is an element of the of fense , and believes the conduct will ca use the re sult without further conduct on the pe rson’s part; or

(3 ) A c ts w ith int e nt to c omp le te a c ours e of a c tio n o r c a

us e a re su lt that w ou ld constitute the offe nse, under the circ umstances surr ounding the conduct a s the person believes the m to be, and the c onduct constitutes a sub s t an tial step toward the commission of the offe nse.

I d. § 39-12-101( a).

Vi e we d in

the lig ht m os t fa

vo ra ble to the State , the e vid e nc e e sta bli sh e d th a t th e de fe nd a nt, Ta y lor , a nd Ab e rn a thy dis c us se d the ir ne e d fo r mon e y and the n fo rm e d and imp le me nte d a pla n to rob the L ittle St ar G roce ry , with Taylor arminghimself with a .22 pistol and the defe ndant with the

sawe d- of f, .1 2- g a ug e sh otgun

he us e d w he n d e mand ing the vic tim ’s mon e y . Wh e n th e vic tim g rabbe d the wea

pon, the def

endant strug g led with him over its cont ro l u ntil Tay lor fire d his .22 ha nd g un a t th e vic tim . T he de fe nd ant then grabbed the vic tim ’s .3 57 and sh ot h im i n th e c he st,

c a us inghis e ve ntual deat h, jus t be fo re be ingsh ot i n tu rn by the vic tim , w ho ha d s uc c e e de d in

wre stling t he defenda

nt’s shotgun from him. A short time later, the defe ndant showed up at a nea rby fire station with a shotgun wound to his chest and wa s transported to the hospital, whe re he g ave a n oral statement admitting his r ole in the crimes, which was followed by a substantially simil ar w ritten statement made the next day at the homicide office

. This e vidence was more than suffic ient for the jury to f ind the defe ndant g uilty of first deg ree felony murder a nd attempted espe cially

ag g ravated

ro bb e ry bey on d a re a so na ble do ub t. We c on c lud e , th e re fo re , th a t th e e vid e nc e wa s su ff ic ie nt t o sustain the defe ndant’s convic tions.

CO NC LU SION

Ba sed on our r eview, w e conc lude that the evide nce was suff icient to sustain the defe ndant’s convictions and that the tria l court did not e rr in a llowing into e vidence the def endant’ s statement-12-

to police and L ieutenant L uckett’s rebuttal testimony . Acc ording ly , we a ffirm the judg ments of the trial court.

___________________________________ AL AN E. GL ENN, JUDGE