### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Jul y 19, 200 5 S es sio n

STATE OF TENNESS EE v . DAVID M. OLVERA

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2003-A- 390 Cheryl Blackbu rn, Judge

No. M2004- 02090-CCA -R3-C D - F iled Dece m ber 2, 2005

Th e de fe n d a n t , D a v i d M

. O l v e r a , w a s c o n v i c t e d o f f i r s td e g r e e f

e l o n y m u r d e r a n d e s p e c i a l ly
ag g ravated robbe ry

and sente nced to c oncurr ent terms of life and twenty y ea rs, re spectively . On appea l, he ar g ues: (1) the evidenc e is insufficient to sustain his convictions; (2) the trial court e rre d in deny ing his motion to suppress his statement t o p o l i ce; ( 3) the trial c ourt err ed in allowing an intern fr om the district attorney g ener al’s off

ice to participa te in r eading the def endant’ s statement to the jury ; and (4) the trial court e rre d in char gi n g t h e juryon flig ht. 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.
, d e li v e r e d th e o p in io n o f th e c o u r t, in which J OHN E VE R E TT W I L L I AMS and R OB E R T W. W EDEMEYER , J J ., joined.

David G. Hir shberg , Nashville, Tenne ssee, f or the a ppellant, David M. Olve ra.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; El iza be th T . Ry a n, As sis ta nt A tto rn e y Ge ne ra l; Victor S

. Jo h n s o n , I I I
, D is tric t A tt o r n e y G e n e r a l; a n d B r e t T

. G u n n a n d Ro b e r t E

. M c G u ire, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

Gladis Ba stista Garc ia, testify ing thr oug h an interpre ter, said that she had been marrie d to the victim, Nemesio Silva, for ten y ear s and the victim ha d lived in the United States for one y ear befor e he wa s killed. She denied knowing the def endant or the code fenda nt, Carlos Serra no.

I g mni c io C ru z Mart ine z, a lso te sti fying thr ou g h a n in te rpreter , s a id tha t he a ndthe vic tim lived in the same a

partment c omplex on M u rf re es b oro Road in Nashville a nd that the victim had purcha sed an automobile one month before he wa s killed.-2-

Offic er G arry

J . J ames of the Metro Police De partm en t t es t ified that he w as ca lled to the crime sc ene of

f Culbertson Road on Aug ust 26, 20 0 2
, wh er e he f ound the victim’s body

at the bottom of an embankme nt next to a cr eek. O ffice r James obse rved a bloody rock at the top of the hill directly

above the victim’s b o d y , as we ll as sever al liquor bottles. He said the a rea wher e the victim’s body

was found w as about thre e-qua rters of a mile ea st of Nolensville Road.

J org e Pastrana Her nandez, t estify ing throug h an int erpr eter , said that the defendant ha d lived wi th h im a ndha d in tr od uc e d th e c od e fe nd a nt, Carl os Se rr a no , to him

. He sa id tha t on Sun da y nig ht, the de fe nd a nt, Se rr a no , an d Mario Ra mir e z we re dr inking a t his ap art me nt an d sub se qu e ntl y le ft in the def endant’ s Mitsubi shi Mirag e automobile. Hernandez did not know what time the three men had returned, but they wer e at his apartment when he left for work the ne x t morning a

round 6:40 or 7:00 a .m. a nd wer e still there when he ar rived home f

rom work that a fternoon. H e later saw Serr ano clea ning out a red N issan Pathfinder a nd throwing something into a g arba g e dumpster. Ser rano subsequently

left the a partment in the Pathfinder , followed by the def endan t and Ramirez in the defe ndant’s ca

r. When the def

endant lef t, he took all of his belong ings w ith him.

Yo na s A lti mim i, the ow ne r o f L a fay e tte Mo tor s, te sti fi e d th a t th e de fe nd a nt bou g ht a Mits u b is h i M ir a g e a u to mo b il e f r o m h im in 2 0 0 2 a n d in late A u g u s t 2 0 0 2
, th e d e f e n dant and two other men br oug ht a Nis san P athfinder to him to see if he would be int ere sted in buy ing it. Of the three men, the def

endant wa s the only

one who spoke Eng lish. The defe ndant told him that S err ano wanted to se ll the vehicle be cause he nee ded f u n d s t o go t o Mexi co. The men had a title to the

ve hic le , a ndAl tim imi pu rc ha se d it fo r $ 45 0. Ab ou t two da y s lat e r, the po lic e c on fi sc a te d th e ve hic le and title. Altimim i i d en t i fi ed a photog raph of Serrano as the man w ho sold him t he Nissan Pathfinder a nd acknow ledg ed that the na me on the title did not match any of the thre e men who broug ht the vehicle to him.

Kurt Walter B artlett, a crime scene investigator for the Metro Police De partment, testified that the cr ime scene appea red to be “a ha ng out for the loca ls wher e they would g o and drink, may be by the sid e of

the c re e k, thr ow bo ttl e s in to the c re e k. ” He sa id the re wa s “ qu ite a bit of de br is” in the ar ea w hich hampered his collection of the evidenc e. He said the victim was “c overe d in blood” and had “ some distortion to hi s fac e bec ause he had been l ay ing [ sic] there for quite a while.” He took photogr aphs of a

rock tha t was cove red in blood and ma de a dia g ram of the crime sc ene. H e subsequently

proce ssed the Nissan Pathfinde r and f ound latent fing erprin ts a

r o u n d the door, the hood

are a, and the rea

rview mirr or.

Offic er Thomas Sim pkins of the Metro Police De partment testified tha t he proc essed the

e vid e nc e c oll e c te d b y

Of fi c e r B art le tt, inc lud ing a B oo ne ’s F arm

bo ttl e , o n w hic h h e fo un d s ome latent fing erprints, and a broke n Chevas Reg al bottle on which he notice d possible blood spots and two hairs.

L inda Wils on, a police identification analy st with the Metro Police Depa rtment, testified that she re ceive d the latent fing erprint lifts from Office rs B artlett and Simpkins and determined that prints from the drive r’s door of the vehicle matched Ca

rlos Serra no.-3-

Dr . A my Mc Ma ste r t e sti fi e d th a t sh e ob se rv e d p art of the a uto ps y

pe rf or me d o n th e vic tim by Dr. Thomas D eering. She sa id the victim had sustained multiple lacer ations, cont u s i o n s, and abra sions “ all about the hea d and nec k.” I n addition, he had se vera l frac tures of the upper a nd lower jaw which w ere comminuted, meaning that the bone wa s broken into m any piece s, indicating “a ve ry strong impact or a

strong trauma.” The victim also had a fra cture along the base of the skull, which ind ic a te d b lun t tr a uma

to the skull ; a lar g e pu rp le c on tus ion on the le ft sid e of the fa c e ; a ndmul tip le small abrasions to t he chest, abdomen, a nd leg s. Asked which w as the fatal injury , Dr. McMa ster

o p i n ed that it could have been the injury to the skull, which resulted in injury to the brain, or the fra cture s to the hy oid bone in the nec k. She said both of these injuries w ere cause d by blunt force
trauma a nd wer e consistent with blows “fr om something hard l ike a bottl e or a rock.” The victim’s
tox icolog y

report reve aled .238% ethanol in his blood.

Detec tive Der

ry Ba ltimore of the Metro Poli ce Depar tment Murder Squad Unit testified that he intervie wed the de fenda nt on September 3, 2002, throug h Detec tive Marvin Rivera who spoke Spanish. The def

endant c ame to the police station voluntarily an d wa s not under ar

rest. The interview w as videotape d, and the tape was admitt ed int o evidenc e with a small portion of it being play ed for

the jury

. T h e i n t er view wa s subsequently transcribed in Eng lish, and both parties stipulated as to the acc urac y of the transcript. Detec tive Ba ltimore, along with Detec tive Rivera a nd Har old Donnelly

from the district attorne y g ener al’s off

ice, then r ead the transcript into evidence.

During his interview, the defe ndant said that he, Ser rano, a nd Ramirez left Fr anklin on a Sunday and drove to the Ex ecutive House Apartments in Nashville, arriving a round 10:00 p.m. The defe ndant waited in the car while S err ano and Ramirez went to look for someone . When Serrano

a ndRa mir e z re turne d, the vic tim app ro a c he d a nda sk e d Se rr a no if he wo uld take him to b uy so me beer beca use he did not know how to drive a standard shift a utomobile. Serra no then left with the victim in the victim’s vehicle, and Ramire z g ot in the defendant’s car. When the vic tim and Serrano
returne d, Serra no g ot in the car with the defe ndant and Ramire z and told Ramire z that he had see n the title to the victim’s vehicle. Ramirez then said, “ L et’s rob him” and asked the defe ndant if he wanted to pa

rticipate. The defe ndant initiallysaid “no,” but, after much nag g ing a nd chast i s i n g, Ramirez convinced the defe ndant to participa te in the robbe ry . Serra no and Ramirez g ot out of the defe ndant’s ca

r and invited the vic tim to drink wit h them in the car . The four men t h en l ef

t the

apa rt me nt c omp le x an d dr ov e to No le ns vil le Roa d wh e re the y sto pp e d a t a g a s st a tio n to pu rc ha se be e r. Th e y

la te r s top pe d on Ov e rt on Roa d wh e re Se rr a no , Ra mir e z, a ndthe vic tim g ot o ut t o u ri na te while the def

endant r emained in the c ar. The defe ndant then saw Ramirez hit the victim i n the hea d

sever al times with a “big bottle.” The de fenda nt got out of the car and told Ramirez to stop hi tting
t h e v i ct i m , b u t R am i re z re fu s ed

. S er ra n o al s o t o l d R am i re z n o tt o h i tt h e v i ct i m an y m o re , s ay i n g, “[Y]ou’re g oing to kill him.” Ramirez the n said he was g oing to “ shove” the victim into the rive r and proc eede d to push the victim down the embankment. Not wa nting to get involved, the de fenda nt returne d to h i s ca r. Serra no and Ramirez subsequently walked up f

rom the river

bank, and the defe ndant drove them to the Ex ecutive H ouse Apa rtments wher e the victim’s vehicle w as loca ted. All three me n then re turned to F ranklin, with Serra no driving the victim’s vehicle a nd Ramirez and the def endant tra veling in the defe ndant’s car

. After selling the victim’s ve hicle to a deale rship for $450, they

went to Pennsy lvania.-4-

Heather Ag uirre te stified that, in 2002, the defe ndant and Ser ra n o lived with her a t the He ri ta g e Pla c e Ap art me nts in Fra nk lin . D ur ing that ti me , th e de fe nd ant w or ke d lo ng ho ur s si x to seven day s a we ek. She ra rely saw the de fen d an t d ri nk alcohol, but Serra no drank “ a lot” and “alway s wanted to g o out and party .” She had se en Ramirez on two occ asions.

Ag uirre sa id the defendant, S err ano, and Ramirez came to her a partment on the morning of Aug ust 26, 2002, and she saw a Nissan Pathfinder parke d in f ront of the apa

rtment. Serra no told her he had boug ht the Pathfinder, sh o we d her the reg istration, and claimed ow nership. She said the defe ndan t t o l d h er go od-by e and to take car e of he r childre n, and the thre e men then le ft for Pennsy lvania. Subsequently , she talked to the defe ndant by telephone a nd convince d him to return to Fra nklin because the police wa nted to question him.

The twe nty -one- y ea r-old defenda nt testified that he wa s a native of Mexi co and ha d been living in the Uni t ed States for a bout four y ear s. He said he had a third g rade education and had

wo rk e d a s a

pa int e r. Th e de fe nd a nt s a id w he n h e arrive d h ome fr om wo rk aro un d 5:0 0 or 6:0 0 p .m. on Aug ust 25, 2002, Serrano a nd Ramirez were there drinking teq u i l a. At their re quest, the de fe nd a nt dr ov e Se rr a no a nd Ra mir e z to Na sh vil le “ to loo k fo r a frie nd a t the Execut iv e [ Hous e Apartments] s o they

could drink bee r.” Ser

rano a nd Ramirez could not locate their friend, but Se rr a no ta lke d to the vic tim a nd the n dro ve the vic tim to a g a s sta tio n to buy be e r be c a us e the vic tim didno t know ho w to dri ve a sta nd ard sh if t c ar. Whe n Se rr a no a ndthe vic tim re turne d, Se rr a no tol d the de fe nd a nt a ndRa mir e z the y sh ou ld s te a l th e vic tim ’s ve hic le be c a us e he ha d see n the tit le to i t. Ramirez ag ree d, but the defe ndant told them he did not w ant to pa rticipate. Ramire z and Serrano told the defe ndant that he “ wasn’t a cting like a Mexican,” a nd Ramirez told hi m if he did not
pa rt ic ipate , h e wo uldbe the on e the y a tta c ke d. Th e de fe nd a nt sa id h e fe lt thr e a te ne d b e c a us e Ramirez was sitting in the fr ont seat of his vehicle with a bottle of te quila in his hand. Serra no then l o ca t ed t h e v i ct i m , wh o wa s d ru n k
, an d p er s u ad ed h i mt o get i n t h e ca r wi t h th em t o go “d ri n k i n g” and “looking for wome n.” The four men the n l ef t the apa rtment complex, with t he def endant driving . After

stopping at a gas s t at ion to purchase beer , they continued driving and did not stop
ag ain unt il Ramirez told the defendant he neede d to urinate. Ramire z, S err ano, and the victim then
g ot out, and Ramirez ordere d the def endant out of the car . Whil e the victim was urinating, Ra mirez

c a me up be hin d h im a nd“ hit him a t th e na pe of the ne c k with a

bo ttl e of the te qu ila ” se ve ra l ti me s. When Serrano s aw t h e victim on the g round, he “ started to kick him in the ribs.” The defe ndant de sc ri be d w ha t ha

pp e ne d n e xt:

I walked towa

rd m ycar

when [Ramirez and Serra no] each g rabbe d [t he vic tim ], e a c h o ne wi th o ne le g a ndon e ha nda ndpu sh e d h im d ow n a n e mba nk me nt. And I g ot into my car but I was shaking

. I didn’t know what to do. I kept stepping

on the gas and stepping on it and the car was on, it was r unning. A nd I

tried to g et it to move but it wouldn’t move.

. . . .T he l et t er was wri t t en i n Sp ani sh b ut was t rans l at ed by t he co urt i nt erpret er. B o t h p art i es st i p ul at ed as t o t he 1 accuracy of

t he t rans l at i o n.

-5- I saw how the y

hit him and I

saw how the y

wer e kicking [ t h e v i ci tm] and I tho ug ht tha t I

wa s g oin g to b e the ne xt.

The de fenda nt said Ramirez and Serra no then jumped in the ca r, and Ramirez tol d the defe ndant, “[Y]ou were trying to lea ve us, wer en’t y ou[? ] . . . [L ]et me make this clear to y ou, y ou shit head, this was no g am e. ” The three men re turned to the Executive House Apartments where Serra no g ot in the victim’s ve hicle and then drove it to the apartment in Fra nklin. The defe ndant and Ramirez drove to the Franklin apa rtment in the defe ndant’s ca r. The ne x t day , the three men went to Altimi mi’s dealer ship and sold the vehicle f or $450, with Serra no rec eivin g the money . The defe ndant ac knowledg ed that he w as the one who spoke to Altimimi beca use Ramirez and Serr ano could not speak Eng lish. The defe ndant said that Ramirez later took the money from Serr ano and
t h a th e d i d n o tr e c e i v e a n y o f t h e m o n e y.

After they left the de aler ship, Ramirez tol d Serra no and the defe ndant that he could g et them jobs in P ennsy lvania. When the defe ndant said he “wa sn’t g oing any wher e beca use

. . . [he] hadn’t done anything,” Ramirez told him that all three of them “w ere involved in this and that

. . . if he g ot put in the jail t h at [ t h e def endant] was g oing in too. And that if not, then he would find [the defe ndant] and he would hurt [the defe ndant].” The thre e men late r drove to Pennsy lvania in the defe ndant’s ca

r, and, e n route, Serr ano and Ra mirez told the defendant “about how t hey had beaten [t he victim]. They

wer e just kidding a

round about it.”

After stay ing in Pennsy lvania for about a week, Ramire z left for Mexico and the def endant

c a lle d H e a the r A g uir

re to e xpla in “ wh a t wa s g oin g on .” Ag uir re tol d him that de te c tiv e s w a nte d to
sp e ak to him

. Th e de fe nd a nt a nd Se rr a no su bs e qu e ntl y dr ov e ba c k to F ra nk lin , d ur ing wh ic h ti me Serra no tol d t h e d ef

en d an t to be “ve ry

car eful” about what he told the police and “ to not say that [S err ano] . . . had picked [t he victim] up

. . . and thrown him.” Ser rano a lso told t he def

endant not to tell “about the wa y

that [R amirez and Serr ano] had treated [him ] because if [S err ano] were to be put in jail, he was g oing to make sure that [t he defenda nt] g ot put in jail too. And that if they didn’t

c a tc h [th e de fe nd a nt] the n Ra mir e z ha d alr e a dy tol d [th e de fe nd a nt] w ha t th e y we re g oin g to d o to [hi m] .” The defe ndant said he took Serra no’s t hreats seriously beca use he had see n “with [his] own ey es how they

kicked [the victim] .”

The de fenda nt then rea d into evidence a two-pa g e, bloods t ained letter which he r ece ived 1 from Serr ano af

ter they wer e inca

rce rate d:

I kn ow that y ou did n’ t say a nythi ng

. Yo u’ re the on ly on e that kn ow s w ha t I dida ndif y ou sa y so me thi ng , I ’m g oin g to kill y ou a s I do wi th the oth e r o ne – a s I did w ith the other dude on the street. I ’m g oing to c ut y our throat one side to t he oth e r. Ke e p y ou r m ou th s hu t a nda c c e pt w ha te ve r c ome s.-6- . . . .

I t’ s b loo d in sid e a ndblo odou tsi de

. . . if y ou sa y so me thi ng abo ut w ha t I

did about what ha

ppened, y ou’re a dea d man. You’re living here with me and y ou know what could ha

ppen if y ou tell the t ruth about what I did. I ’m g oing to make sure that
y ou never wake up. . . .

On c ro ss- e xami na tio n, the de fe nd a nt ma int a ine d tha t he ha d n o c ho ic e bu t to pa rt ic ipate in the robbe ry

of the victim bec ause Ramire z and Serrano w ere in his car , “[o] ne of the m beside me, one of the m behind me g iving me or ders, turn he re, turn the re.” He a cknowledg ed that whe n he g ave his statement he did not tell the police that he had been coe rce d by Ramirez because he w as “ve ry nervous” and thought he “would be the next one they would kill.” The de fenda nt said that he we nt to F lorida a ft e r S e rr a no wa s a

rr e ste d a ndthat he wa s li vin g in O hio a t th e tim e of his arr e st.

Serg eant JohnnyL . Hunter of the Metro Pol ice Department, who was acc epted by the trial
court a s an expert i n handwr iting analy sis, identified a letter written in Spanish that he re ceive d for handwr itin g co m p ar i s o n wi t h t h e d ef en d an t ’s an d S er ra n o ’s h an d wr i t i n g s am p l es

. He wa s also asked to perform a blood test to de termine if the r ed substance on the letter w as indee d blood. Serg eant Hunter opine d that the letter w as written by Serra no and said that the red substance tested positive for blood.

Ma i n o r P a t r i c i o S a l a s , t e s t i f

y i n g t h r o u g h a n i n t e rp r e t e r , s a i d t h a th e w a s c urre ntl y inc arc e rate d f

or a g g ra va te d r ob be ry

a ndha d me t th e de fe nd a nt a ndSe rr a no in pris on

. He sa id Serra no had conf

essed to him “what they

had done.” He sa id that although Serrano ha d not give n him a name, he told him “they had stolen a c ar and they had kil led t he owner of the c ar.” Serra no told him t hat Ramirez had hit the victim on the head w ith a bottle and that Serra no had kicke d the victim when he f

ell to the g round. Serr ano also told him tha t the defe ndant “wa s on the other side” and did not do anything to the victim.

At the conc lusion of the trial, the j ury found t he defenda nt g uilty of first deg ree felony murder and espe cially

ag g ravated robbe ry

. The trial court denied the defe ndant’s motion for new tria l, and the de fe nd a nt f

ile d a tim e ly app e a l to thi s c ou rt

.

AN AL YSI S

I. Su ff iciency of the Evid ence

The de fenda nt arg ues that the e vidence is insuff icient to support his convictions, say ing tha t he “w as oper ating under duress” at the t ime the offenses we re c ommitt ed. Specif ically , he ar g ues that “ [i]t w a s a

mis c arria g e of

jus tic e fo r the jury

no t to ha ve a c c or de d the de fe ns e the ory of du re ss g reater we ight, a s it more than made up f or any evidenc e pre sented by

the S t ate about [ the defe ndant’s] mini mal involvement.”-7-

I n considering this iss ue, we apply the fa miliar rule that whe re suf ficienc y of the c onvicting evidenc e is cha lleng ed, the r eleva nt question of the re viewing court is “whe ther, a fter viewing the evidenc e in the l ight most favor able to the pr osecution, any rational trier of fa ct could have found the essential elements of the crime bey ond a rea sonable doubt.” J ackson v. Virg inia, 443 U.S. 307, 3 1 9
, 9 9 S

. C t

. 2 7 8 1
, 2 7 8 9
, 6 1 L

. E d

. 2 d 5 6 0
, 5 7 3 (1 9 7 9 ); s ee al s o T en n

. R

. Ap p

. P

. 1 3 (e ) ( “F i n d i n gs of g uil t in c ri min a l a c tio ns wh e the r b y the tr ia l c ou rt

or jury sh all b e se t a sid e if

the e vid e nc e is ins uf fi c ie nt t o s up po rt

the fi nd ing s b y

the tr ie r o f f

a c t of g uil t be y on d a

re a so na ble do ub t.” ); Sta te v. Ev an s , 838 S.W .2d 185, 190-92 (Te nn. 1992); State v. Ander son, 835 S.W .2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the cre dibilit y of wit nesses, the weig ht and value to be
g iven the evidenc e, and 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 g uilty verdic t by the jury , approve d by

the trial judg e,

acc redits the testimony of t he witnesses for the State and re solves all conflicts in fa vor of the the ory of the State.” State v. Gra ce, 493 S.W.2d 474, 476 (T en n

. 1 9 7 3 ). Our supre me court stated the rationale for this rule:

This well-settled rule res t s o n a sound foundation. The tria l judge and the jury see the witnesses fa ce to f ace , hear their testimony and observe their de meanor

on the stand. Thus the trial judge and jury are the primary instrumentality

of justice
t o d e t e r m i n e t h e w e i g h ta n 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 t rial f o ru m a lo n e is th e r e h u ma n a tm o s p h e r e a n d th e to ta li ty o f th e e v id ence

c a nn ot b e re pr od uc e d w ith a writt e n r e c or d in thi s Co urt.

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 th e p resumpti on of innoce nce w ith which a de f e n d a n t i s in it ia ll y

c lo ak e d a n d r e p la c e s it

w ith o n e o f

g u il t, s o th a t o n ap p e a l, a c o n v ic te d 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)

.

Du re ss i s d e fi ne d a s f

oll ow s:

(a ) D ur e ss i s a de fe ns e to p ro se c uti on wh e re the pe rs on or a thi rdpe rs on is thr e a te ne d wi th ha

rm wh ic h is pr e se nt, imm ine nt, imp e nd ing a nd of su c h a na tur e to induce a well-g rounded a

pprehe nsion of death or serious bodily injury if the ac t is not done. The threa tened harm must be continuous throug hout the time the act is being

c o m m i t t e d
, a n d m u s tb e o n e f r o m w h i c h t h e p e r s o n c a n n o tw i t h d r a w i n s a f e t y. Further, the de sirability

and urg ency

of avoiding the ha rm must clearly outweig h,

acc ording to ordinary

standards of

rea sonablene ss, the harm soug ht to be preve nted by the la w p ro sc ri bin g the c on du c t.

(b) This de fense is una vailable to a person who intentionally , knowing ly , or

rec klessly become s involved in a si tuation in which it was proba ble that the per son would be subjec ted to compulsion.-8-

Tenn. Code Ann. § 39- 11-504 (2003)

.

At tr ia l, the de fe nd a nt t e sti fi e d a s to his c la ims of du re ss, a nd , a s is ob vio us fr om the jur or s’

ve rd ic t, the y did no t a c c re dit the te sti mon y

. Cr e dit ing the Sta te ’s e vid e nc e , w hic h w e ha ve se t ou t, the jury rea sonably

could have found the de fenda nt guilty of fe lony mu r d er a nd espec ially

ag g ravated robbery . Additionally , the jury rea sonably could have disbelieved the de fenda nt’s claim that he ha d no choice but to participate in the r obbery of the victim bec ause he felt threatened by Ramirez and Se rr a no . A c c or din g ly , w e c on c lud e that th e e vid e nc e is s uf fi c ie nt t o s us ta in the c on vic tio ns

.

II. De nia l of M ot ion to Suppr e ss

Th e de fe nd a nt n e xt ar g ue s th a t th e tr ia l c ou rt e rr e d in de ny ing his mot ion to supp re ss h is statement, say ing w ithout “his admissi on that Mr. Ramirez convince d him to help in the robbery , the State would have ha d no case .” He claims that he wa s in police custody at t h e t i m e h e gav e the statement and tha t he should have be en advise d of hi s Miranda rig hts. The trial c ourt found to the

c on tr ary a s to bo th c la ims

.

We review t h e t ri al court’s denial of the de fenda nt’s motion to s uppress by the following

we ll- e sta bli sh e d s ta nd ard :

Questions of cred i b i l i t yof the witnesse s, the weig ht and value of the evidenc e, and r esolution of conflicts in the evidenc e are matters entr usted to the trial judge as the tri er o f fa ct

. The pa rty preva iling in the trial c ourt is entitled to the
str on g e st le g iti ma te vie w of the e vid e nc e a dd uc e d a t th e su pp re ssi on he ari ng a s w e ll

a s a ll r e a so na

ble a nd le g iti ma te inf

e re nc e s that ma y

be dr a wn fr om tha t e vid e nc e . So lon g a s th e g re a te r w e ig ht o f the e vid e nc e su pp orts the tr ia l c ou rt ’s fi nd ing s, tho se finding s shall be upheld. I n other wor ds, a trial court’s finding s of fa ct in a suppression hea

ring will be upheld unless the evide nce pr eponder ates other wise.

Sta te v. Od om, 92 8 S.W.2 d 1 8, 23 (T e nn . 1 99 6) . H ow e ve r, the tr ia l c ou rt ’s app lic a tio n o f l a w t o the fa cts, as a matter of law , is reviewe d de novo , with no presumption of corr ectness. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). This court may consider the proof at trial, as well as at the suppression hea

ring
, when considering the appropriateness of the trial court’s ruling on a pre trial
mot ion to sup pr e ss. Se e Sta te v. He nn ing , 9 75 S.W. 2d29 0, 29 9 ( Te nn . 1 99 8) (h old ing that be c a us e the rules of a

ppellate pr ocedur e “c ontemplate that alleg ations of er ror should be e valuated in lig ht of the e ntire re cord,” an appe llate court “may consider the proof a dduced both at the supp ression hearing a nd at trial”)

.

Th e de fe nd a nt f

ile d a pr e tr ia l mo tio n to su pp re ss his state me nts , a rg uin g that th e state me nts

wer e not fre ely and voluntarily made and wer e obtained in violation of the Vienna Convention, the latter c laim not being pur sued on appe al. At the F ebrua ry 11, 2004, suppression hearing , Detec tive B a lti mor e te sti fi e d that he int e rv ie we d th e de fe nd a nt thr ou g h D e te c tiv e Riv e ra , w ho tr a ns la te d in Spa nis h. He a dv ise d th e de fe nd a nt tha t he was no t un de r a rr e st a ndtol d h im the de te c tiv e s “ jus tA t t he begi nn i ng of t he hea r i ng , defens e c ouns el i nfo rm ed t he t r i al cour t t hat t he defendan t i s not a U ni t ed 2

S ta te s c iti z e n

.
-9- wa nte d to fi ndou t ho w the y g ot the [vic tim ’s ] truc k. ” He sa id he tol d th e de fe nd a nt h e wa s f re e to le a v e a t a n y t i m e

. D e t e c t i v e B a l t i m o r e s a i d t h e d e f e n d a n t w a s n o t arr e s t e d t h e d a yhe g a ve his
statement an d wa s , i n fac t, not arre sted until “months” later. On c ross-examination, Detec tive B a lti mor e a c kn ow le dg e d h e tol d the de fe nd a nt that if Rami re z sa id the de fe nd a nt h a d h e lpe d h im, the de fe nd a nt w ou ld be a rres ted a ndthat if the de fe nd a nt t oldthe truth , h e wo uldbe a llo we d “ to walk out of he re toda y .” Aske d why he made t h e l at t er s t at ement to the def endant, B altimore explained, “I t was just a technique to try to ge t him to t ell me what Ser rano ha d done.”

The de fenda nt testified at the hea ring that he had a

third g rade education a nd that he wa s not

a dv ise d o f his ri g hts a t the tim e he g a ve his state me nt. He sa id he wa s ne ve r i nf or me d th a t he did not have to talk to t he detectives or that he had the right to talk to the M exican Consulate. Asked 2 if he thoug ht he was f

ree to leave during the interview, the defe ndant re plied, “I just didn’t know, just tol d me to testify . I

didn’t know if I

was g oing to be arr ested. I didn’t know what to do.” He acknow ledg ed that he w ent with the detectives to the crime sc ene a fter the interview but said it was his underst an d i n g t h at he had no choice but to accompa ny them. On cr oss-examination, the defe ndant ac knowledg ed that he voluntarily returne d to T ennesse e from Pennsy lvania af ter lea rning from He ather

Ag uirre tha t the police wanted to ta lk to him. He a lso acknowle dg ed that, during the interview, the police never told him that he was unde r ar rest. He said he ha d wanted to tell the police the truth but was af

raid that Ramire z and Serrano “ would do something” to him. Asked bythe trial court if he knew what “advised of y our rig hts” meant, the de fenda nt replied, “ I don’t know.”

At the conc lusion of the hearing, the trial court took the motion under a dv isement and subsequently

enter ed a de tailed orde r denying it.

I n concluding that the statement wa s voluntary , the trial court noted that Detec tive Ba ltimore testified that neither

the def endant nor

his codefe ndant, Serra no, was a dv i sed of his rig hts when questioned bec ause ne ither wa s a suspec t or under a rre st and offic ers had no intention to do so, t he purpose of

the questioning being to determine how they came to po s s es s the victim’s vehicle. Additionally , Ba ltimore said that when t h e defe ndant and Ser rano w ent to the crime scene for a n

a dd iti on a l in te rv ie w, the tw o r od e wi th H e a the r A g uir re , r a the r tha n in a po lic e ve hic le . T o a sc e rt a in whether the def endant wa s in custod y at t h e t i m e of his interview w ith the office rs, the trial c ourt applied the nine- fac tor test set out by our supreme c ourt in State v. Anderson, 937 S.W.2d 851, 855 (Tenn. 1996) . These f

actor s are : the time and location of the interrog ation; the duration and char acte r of the que stioning; the off icer ' s tone of voice and g ener al demea nor; the suspec t's me thod of trans p o rt ation to the place of questioning ; the number of police office rs pre sent; any limit ation on movement or other

form of r estraint imposed on the sus p ec t during the interrog ation; any interac tions between the office r and the suspect, including the words spoke n by the offic er to the

su sp e c t, a ndthe su sp e c t' s v e rb a l or no nv e rb a l r espons e s; the e xten t to wh ic h th e su sp e c t is

c o n f r o n t e d w i t h t h e l a w e n f

o r c e m e n to f

f i c e r ' s s u s p i c i o n s o f

g u i l to r e v i d e n c e o f

g u i l t ; a n d f

i n a l l y,-10-

the extent to which the suspect is made a war e that he or she is fre e to re fra in from answe ring questions or to end the intervie w at will. I d.

I n a pp ly ing the se c on sid e ratio ns , th e tr ia l c ou rt no te d th a t th e de fe nd a nt h a d v olu nta ri ly c ome to the po lic e statio n with a frie nd ; th a t on ly tw o o ff ic e rs we re pr e se nt d ur ing the qu e sti on ing , w ith Detec tive Rivera be ing pr esent be cause he wa s fluent in Spanish a n d co u ld interpret f or the defe ndant; that the defe ndant was not plac ed in re straints during the interview ; that the intent of the interview w as to determine how the defe ndant came into possession of the victim’s ve hicle and he
was not a suspect at the time; a nd that he was not a rre sted until Jul y 9, 2003, near ly one y ear afte r the interview . Additionally , the court conclude d in its order that, based on its re view of the interview tape a nd of the tra nscript
, “b o t h t h e ver bal and non- verba l interac tion between the detec tives and Def endant [was] a cordia l exchang e, fr ee f rom threa ts.” Al though D etec tive Ba ltimore told the de fe nd a nt d ur ing the int e rv ie w tha t “ if [Ra mir e z] sa y s th a t y ou he lpe d him

. . . I ’m g on na [sic ] ar re st y ou ,” B a lti mor e e xpla ine d, du ri ng c ro ss- e xami na tio n, that he wa s u sin g tr ic ke ry wi th the de fe nd a nt. The trial c ourt noted that the courts of this state have permitted misrepre sentations to be made to a n individual being que stioned so long a s it “alone doe s not inva l i d at e an otherwise voluntary confe ssion.” State v. Stearns, 620 S.W.2d 92, 96 (Tenn. Crim. App. 1981).

Ba sed upon its review of the videota pe and tr anscript of the interview, the court de termined that the s t at ements of De tective B altimore to the def endant “ did not rise to the level to over bear Def endant’ s will.” Additionally
, the trial court found, based upon the defe ndant’s testimony at the suppression hea

ring , that he did not “fe el threatened or coer ced by the officers.” At the hea ring , the d ef en d an tt es t i fi ed t h at h e wa s n o tt o l d h e w as u n d erar re s t , wh en h e a p p ea re d fo r t h e q u es t i o n i n g, and that he understood the translation of Detec tive Rivera. F urther, the defe ndant said that he w as afr aid of Serr ano and Ra mirez and not the detec tives. Taking all of t h i s t o get h er , the trial court

c on c lud e d th a t th e de fe nd a nt “ wa s n ot i n c us tod y a ndthat hi s st a te me nts to th e po lice du ri ng his September 3, 2002[,] i nterview wer e made voluntarily .”

On appe al, t he defenda nt makes severa l claims as t o why the trial cour

t erre d in concluding that, at the time o f m aking his statement, he wa s not in custody . He a rg ues that “pa

rt of the beg inning of

the videotape [of the defe ndant’s statement] is m issing. The detec tives have not be en able to ac count for why the videotape was not turned on.” Continui ng this a rg ument, the def

endant

asserts that “[i] t is sim pl y too suspicious and convenie nt for the de tectives to testify that the videotape w as er

roneously not turned on whe n [he] was told he c ould cea se the que stioning at a ny time.” The de fe n d an t n o t es that he testified at the suppression hea ring that he had a

third g rade education; that, at the time of the h ea ri n g, h e d i d not know if he wa s fre e to leave the interview
room; that he was shaking during the interview; and that he did not know he could ce ase a nswering questions if he wished.

I n ruling on the def

endant’ s motion t o suppress, t h e t ri al court cre dited the testimony of Detec tive Ba ltimore as to the circ umstances of the interview and its non-coe rcive nature , as well as verifying it fr om the videotape a nd the transc ript, noting that e ven the de fenda nt’s testimonyat the hearing did not support his claim that he r easona bly believed he was unde r arre s t at the time. The-11-

testimony , as we have se t out, supports thi s determination and f inding, as we l l as t h e court’s

app lic a tio n o f the An de rs on fa c tor s.

We conclude tha t the rec ord supports the dete rmination of the trial court that the def endant was not in custody at t he ti me he g ave his statement, and, there fore
, the officers were not require d to advise him of his Miranda rights be fore questioning be g an.

III . R e adi ng o f Tr ans c r ipt of D e fend ant ’s St at e m e nt by Intern with District

Attor ney Ge neral’s Off ice

The defenda nt arg ues t hat t he trial court erre d in allowing Har old Donnelly , an intern f rom the district attorney

g ener al’s off

ice, to participate in the re ading of the tra nscript of his st at ement to the jury . Specifica lly , he ar g ues that the intern could not ha ve portray ed the defe ndant’s deme anor and body lang uage at the time he g ave his stateme nt and that the re ading of the tra nscript was “ a

ne e dle ss p re se ntatio n o f c umu la tiv e e vid e nc e . It’ s [si c ] pr ob a tiv e va lue wa s su bs ta nti a lly outweig hed by

the re alistic dang er of

unfair pr ejudice to [the defe ndant].”

At trial, the defe ndant’s leng thy statement wa s rea d into evidence by Detec tives Ba ltimore and Rivera and Donnelly

. Be cause the defendant could not testify in Eng lish, the trial court allowe d the intern to participate in the reading of t he stateme nt. After thestatement wa s rea d, the trial court i n s t ru c t e d t h e j u r y:

[A] vi de o ta

pe -r e c or din g wa s a llo we d in e vid e nc e

. An d y ou ha ve be e n p ro vid e d w ith a docume nt certified to be an acc urate transcription of the videotape. This doc ument was provide d to y ou to assist in y our under standing of the audio.

The transcript wa s rea d to y ou by

. . . Detec tive Ba ltim o re an d Detec tive Rivera, a nd an individual wh o ’s b een ide ntified to y ou as being – belong ing to the district attorney ’s o ff

i ce

. T he wor ds identified – and he was re ading the words ide nti fi e d a s b e lon g ing to the de fe nd a nt.

I f t here wer e any

discrepa ncies be tween the actua l rea ding a nd the transc ript that w a s c e rt if

ie d to be a c c ur a te , y ou mus t r e ly up on the c e rt if

ie d tr a ns c ri pt.

Also, this transcript contains stateme nts that were made by Detec tives Ba ltimore and Rivera . These sta tements are not admitted for the truth of the matters

asserted by De t ec t i v es B altimore and River a. The se statements of the se witnesses

are admissible only as t hey provide meaning to the statements made by the individual identified as the defe ndant. Only the statements made by the per son y ou identify as the de fe nd a nt m a y

be c on sid e re d by y ou on the qu e sti on of wh e the r the de fe nd a nt i s g uiltyor not g uilty

of any offe nse.-12-

The State a

rg ues, and w e ag ree , that the defe ndant has pre sented this arg ument based upon his view that the trial court should not have allowed th e t ra n s cript t o be re ad aloud but without

c itatio n to a ny

a uth or iti e s a s t o why thi s p ro c e du re is n ot w ith in the dis c re tio n o f the c ou rt a s to prese ntation of evidenc e.

We respec tfully

disag ree wi t h the def

endant’ s arg uments as to this iss ue. F irst, it is sheer specula tion to assert that the intern’ s “deme anor a n d b o d y l anguag e” a ffe cted the trial. The defe ndant has not cla imed that there was a ny thing unus u al ab out the intern’s de meanor and body lang uag e as he rea d portions of t h e st atement. F urther, the defe ndant’s ar g uments as to the prejudicia l/probative consider ations are not r eleva nt f or the sole issue as to this point was the manner of introduction of the e vidence , not its admiss ibilit y . Acc ording ly , we conclude that even if the trial
court e rre d in allowing the defe ndant’s stateme nt to be rea d aloud i n the fashion which it was, the

e rr or wa s h arm le ss.

IV . J ur y I nst r uc ti on o n F lig ht

At tr ia l, the de fe nd ant test if ie d th a t sh or

tly a ft e r the c ri me s, he we nt t o Pe nn sy lva nia wi th Ramirez and Serra no. He also testified that he went to F lorida afte r learning that Serra no had bee n

arr ested. The defe ndant distinguishes the two occa sions he left the state by arg uing that the flig ht instruction was just ified by his g oing to Florida but that, as to his trip to P ennsy lvania, “the re w as

overw helming e vidence that he wa s under dur ess.” He arg ues that the trial court e rre d in instructing the jury on flig ht, say ing “ the jury might have confuse d the two tim es [ t h e d ef en dant] left the juri s d i c t i o n a n d t h e r e b y

a s s o c i a t e [d ] th e t r i a l j u d g e ’ s f l i g h tc h ar g e w i t h e a c h t i m e [th e de fe nd a nt] left Tenne ssee.”

Th e tr ia l c ou rt

ins truc te d th e jury

a s to fl ig ht:

The flight of a pe rson ac cused of a crime is a circ umstance w hich, when

c on sid e re d w ith a ll the fa c ts of the c a se , may

jus tif y a n in fe re nc e of

g uil t. F lig ht i s the voluntary withdrawa l of oneself for the purpose of eva ding a rre st or prosec ution fo r the c ri me c ha

rg e d. Whe the r the e vid e nc e pr e se nte d pro ve s bey on d a re a so na ble doubt that the defe ndant fled is a que stion for y our dete rmination.

Th e la w makes no prec ise dis tin c tio n a s to the ma nn e r o r m e tho d o f f lig ht; it may b e o p e n , o r it may b e a h u rr ie d o r a c o n c e a le d d e p ar tu r e , o r it may b e a

conce a lm e n t w ith in th e ju r is d ic ti o n

. H o w e v e r , it ta k e s b o th a le a v in g th e s c e n e of
t h e d i f f i c u l t y a n d a

s u b s e q u e n th i d i n g o u t , e v a s i o n , o r c o n c e a l m e n t

i n t h e c o m m u n i t y,

or a le a vin g of

the c omm un ity

fo r p art s u nk no wn , to c on sti tut e fl ig ht.

I f flig ht is proved, the fac t of flight alone doe s not allow y ou to find that the defe ndant i s g uiltyof the c rime alleg ed. Howe ver, since flig ht by a def endant may be c a us e d by a c on sc iou sn e ss of g uil t, y ou ma y c on sid e r the fa c t of

fl ig ht, if fl ig ht i s so prov e n , to g e th e r w ith a ll o f th e o th e r e v id e n c e w h e n y o u d e c id e th e g uilt or-13-

innocenc e of the defendant. On t he other hand, an entirely innocent person may take flig ht and such flig ht may be explained by

proof of fer ed, or by

the fa cts and circ umstances of

the ca se.

Whether there was flig ht by the defendant, the rea sons for it, and the we ight to be g iven to it, are que stions for y ou to determine.

Th e de fe nd a nt d oe s n ot c la im the tr ia l c ou rt g a ve a n in c or

re c t in str uc tio n as t o f

lig ht, on ly that err or occ urre d if the jury applied the instruction to bot h occa sions when he lef t Tennesse e. The jury wa s n o t re q u ired to ac cept the de fenda nt’s view that flig ht could not be consider ed as to the Pennsy lvania trip bec ause, by his view, it was taken unde r “dur ess.” Thus, this arg ument is without

me ri t.

CO NC LU SION

B a se d o n th e fo re g oin g a uth or iti e s a ndre a so nin g , we a ff ir m the jud g me nts of the tr ia l c ou rt

.

___________________________________ ALAN E. GL

ENN, JUDGE