### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs D

ecember 13, 2000 STATE OF TENNESSEE v. DONALD LYNN MILLER Direct Appeal from the Criminal Court for Knox County

No. 62654B Ray L. Jenkins, Judge

No. E1999-00148-CCA-R3-CD January 30, 2001
Donald Lynn Miller

was convicted by a jury of f elony murder and especially a ggravated robbery and received respective sentences of life imprisonment and twenty-three years. On appeal, Miller raises the following issues: (1) whether the trial court committed reversible error by allowing the victim’s skullto be admitted into evidence; (2) whether the trial court erred by admitting Miller’s statement to police into evidence and (3) whether the evidence is insufficient to support the verdict. After review, we find no error and affirm the judgment of the Knox County Criminal Court.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
D AVID G. H AYES , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and N ORMA M C G EE O GLE , JJ., joined. Dail R. Cantrell, Clinton, Tennessee, for the Appellant, Donald Lynn Miller.
Paul G. Summers, Attorney General and Reporter, M ichael Moo re, Solicitor General, Mark A. Fulks, Assistant Attorney General, Randall E. Nichols, District Attorney General, and Robert L. Jolley, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION
The Appellant, Do nald Lynn Miller, was charged in a three-count indictment with the offenses of: (1) premeditated first degree murder; (2) murder in the perpetration of a robbery; and (3) especially

aggravated robbery. On May 17, 1999, a Knox County jury convicted the Appellant of murder in the perpetration of robbery and especially aggravated robbery, a c

lass A felony. These convictions resulted in sentences of life imprisonment for felony murder and twenty -three years for especially aggravated robbery. On appe al, the Appellant raises thefollowing issues for our review: (1) whether the admis si on o f the victim’s skull into evidence constituted reversible error; (2) whether the trial court erred by admitting into evidence the Appellant’s statement to police; and (3) whether the evidence produced

at trial was sufficient to support the verdict. After review, we find no error. The judgment of the Knox County Criminal Court is affirmed.1 The record is contradic

tory as t o whether the vi

ctim was home prior to the A ppellant’s arr ival. In another statement

to police, the Appel

lant sai d that he and Bur

ton were hidi

ng at the vi

ctim’s re sidence when t he victim arrived home.
2 We have charact erized admis sion of t

he victi m’s skull a

s demonstrat

ive evidence

based upon the pur

pose for which it was introd uced, i.e. , to ai d th e pathologi st in i llust rating t o the jury f

actual i ssues re

levant t o the homicide prosecuti

on. We ac know ledge tha t, but for this p urpose, th e victim’s sk ull wou ld typically be consid ered “rea l” evidence. In view of the non is sues of “aut henticat ion” and “pr oper fou ndation ,” we find the distinction betwee n “real” and “demo nstrative ev idence” in this case is esse ntially a distinc tion witho ut a differenc e. See genera lly N EIL P. C OHEN ET AL ., T ENNESSEE L AW OF E VIDENCE § 901.1, at 613 (3d ed. 1995). -2- Background
The Appellant, age

twenty-eig

ht, and Brian Ke

ith Burton were c

losefriends and were

both employed by a co nstructioncompany in Knoxville. The Appellant and Burton had discussed robbing the victim, James Tipton, for a period of approximately two weeks. The Appellant had known the elderly victim his entire life and routinely spoke with him. As a

child, the Appellant lived across the street from the vi ctim and was aware that Tipton carried large sums of money on his person. On October 9, 1995, the Appellant and Burton agreed to meet after wo rk to carry out their plan of robbing the victim. That nig ht, the Appellant dro

ve to Burton’s hou

se and the two proceeded to the victim’s house. Before reaching the victim’s house, however, the Appellant parked his truck in a neighbor’s driveway.

Burton removed a

metal bar from the

back of the Appe

llant’s truck and

both men approached the victim’s house.
The Appellant knocked on thefront door. 1 When the victim answered, the Appellant advised Tipton that he had run out of gas and asked if he could borrow some gasoline. Tipton gave the Appellant a five-gallon can of

gasoline which he kept in his truck. Burton then came up from behind the victim and struck him three times in the head with the metal bar. The victim died imme diately from blunt force trauma to the head. He suffered a blow to the right side of his face, a blow to the top right side of his head, and a blow behind his right ear. Burton then took the vi ctim’s b illfold, handgun, and over $10,000 in cash.
After the rob bery, the Appellant and Burton returned to Burton’s house where they divided the money equa

lly. Both the

Appellant and Bu

rton proceeded

to burn their cloth

es, shoes, and the victim’s wallet in Burton’ s fireplace. The y also disposed of the victim’s gun, themetal bar, and the gas can by throwing them into a lake. The victim’s body was discovered two days later.
I. Admission of Victim’s Skull Into Evidence
The Appellant first argues that the trial court abused its discretion by allowing into evidence the victim’s skull as demonstrative evidence 2 because any probative value that

it may have had was clearly outweighed by its prejudicial effect. Specif

ically, the Appellant assert

s that “there was

little rel evan cy, if any, to the

facts demonstrated by the medical examiner through the use of the skull, as those facts were not at issue.” In essence, the Appellant argues that the admission of the skull was3 At trial, Dr. Sandra Elkins t estif ied that three se parate bl ows were delive

red to the head area. She identified two of the blows which fractured the t hickets part of t

he skull as “blows of magnitude,” one of which would have been “imm ediately fatal. ” This proof coupled with Burt on’s posses sion of a dea dly weapon was also relevant to the i ssue of preme ditation, an elemen t of first degre e murd er, for wh ich the A ppellant w as standing trial. -3- irrelevant because neither “the manner of the victim’s deat h” nor “the nature of the blows” was being contested by the defense.
We begin our review of this issue by first observing that when a defendant ple

ads not guilty to an offense, the S tate is entitle d to prove every element of that offense, even if as he re, the defendant does not contest the relevant factor or offers to

stipulate to it. Nonetheless, the Appellant is correct in assertingthat the proffered evidence must be relevant and that the trial court must weigh its probative value a

gainst its potentia

l prejudicial effect. Tenn. R. Evid. 402 and 403. Notwithst anding, the trial court is not required to exc

lude evidence sim

ply becaus

e it is gruesome in nature where it is relevant to establish a factual issue and its probative v alue is not substant

ially outweighed

by the dang

er of unfair pre

judice. It is the fun ction of the trial court to determine the admissibility

of evidence and its ruling will not be reversed absent an abuse of discretion. State v. DuBose , 953 S.W.2d 649, 652 (Tenn. 1997).
Our supreme court ha

s held on multiple

occasions that

a cleaned and r

econstructed sku

ll is no more prejudicial or gruesome than that of a model or diagram. See State v. Pike , 978 S.W.2d 904, 925 (Tenn. 1998); State v. Cazes , 875 S.W.2d 253, 263 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S.Ct. 743 (1995); State v. Morris , 641 S.W.2d 883, 888 (Tenn. 1982). In Morris , 641 S.W.2d at 888, the use of a skull to show the nature andtype of injuries sustained by the victim was approved. Similarly, in Cazes , 875 S.W.2d at 263, the introduction of the

skullwas found to be proper as it aided in identifying the weapon used in the murder.
In this case, the State sought introduction of the victim’s skull to aid in u nde rstanding the testimonyof the forensic p athologist by demonstrating the nature of the injuries inflicted, the amount of force used, 3 and the manner of death. Moreover, demonstrative use of the skull corroborated the Appellant’s statement to the police regarding the number of blows inflicted, the manner in which the blows were inflicted and the type of weapon used. In this case, the trial court permitted the cleaned andreconstructed skull to be introduced but not passed to the jury. We find that admission of the skullaided in explaining the testimon y of t he pathologist and that its probative value was not substantially

outweighed by

the danger of u

nfair prejudice. As su ch, we f ind no error in its admission.

II. Sufficiency of the Evidence
The Appellant asserts that the evidence introduced at trial is insuffic

ient to support the guilty verdict. A jury conviction removes the presumption of innocence wit

h which a defend

ant is cloaked andreplaces it with one of guilt, so that on appeal, a convicted defendant has the burden of-4-

demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining th

e sufficiency

of the evidence, this Court does not reweigh or reevaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty

of this court to revisit questions of witness credibility on appeal, that function being within the province of the trier of fact. See generally State v. Adkins , 786 S.W.2d 642, 646 (T enn. 1990) ; State v. Burlison , 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must es

tablish that the evidence presented at trial was so deficient that no reasonable trier of fact could have found the essential elemen

ts of the offense

beyond a re

asonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1 979); Cazes , 875 S.W.2d at 259; Tenn. R. App. P. 13(e). Moreover, the Stateis entitled to

the strongest legitimate view of the evidence and all reasonable inference s which may be drawn therefrom. State v. Harris , 839 S.W.2d 54, 75, (Tenn. 1992), cert denied, 507 U.S. 954, 113 S. Ct. 1368 (1993).
On appeal, the Appellan t arg ues that “in order for [the Appellant] to be convicted of especially aggravated

robbery, th

e underlyin

g felony in

this matter, he must have had the requisite intent to commit the o

ffense at the time of its commission. However, . . . [the Appellant] testified that he did not know w

hat Burton was g

oing to do, or had done.” Thus, the Appellant argues that no rational tri er of fact could have found him guilty of especially aggravated robbery. While we acknowledge that the Appellant testified to these facts at trial, the Appellant conven

iently ignores the fact that he prov

ided the police wit

h three other pre

-trial stateme

nts wh ich were admitte

d into evidence. In his May 1, 1995, statement to Detective Johnson, the Appellant admi ts to his involvement

in the murder and robbery of Tipton. The following is a portion of

the transcript of the tap ed i nte rvi ew wh ich was pla yed fo r th e ju ry:
JOHNSON: So while you al l were working that day y

ou all plannedto get together later that night to go rob Mr. Tipton? APPELLANT: Yeah.

. . . APPELLANT: He wa s goi ng to hit him ove r th e hea d an d ta ke h is m one y.

. . . JOHNSON: O.K. when you pa rked the truck [ne

ar Tipton’s re sidence], you and Brian ge t o ut. Did either one of you take anything from the truck? APPELLANT: Yeah. JOHNSON: What? APPELLANT: Took that cheater bar. JOHNSON: And that’s the piece of pipe you had mentioned earlier? APPELLANT: Yeah. JOHNSON: Who had that? APPELLANT: We both had it.

. . . APPELLANT:

. . . We was both up at [Tipton’s] house. When [Brian] ru n

around the house well, hell, I just knocked on the door.-5-

. . . JOHNSON: What happened next? APPELLANT: I

asked [Jim] to borrow five gallons of gas, he give me the gas andI stood there and

kept talkin’ to him, k

ept talkin’ to

him, and I took the g

as and I went

down the hill. JOHNSON: What happened next? APPELLANT: I heard pow, pow, pow. JOHNSON: What did you do or what did y

ou hear next? APPELLANT: Heard Brian s ay, “Donald.” I turned around a nd I was halfway do

wn the hill. I me

an hell I was headed back to the truck. JOHNSON: When Brian yelled for you wha t did you do? APPELLANT: I walked up there.

. . . JOHNSON: And what did you see when you g ot up there? APPELLANT: I seen him go ing through Jim’s p

ockets.

. . . JOHNSON: Did he take any thing out of Jim’s poc

ket? APPELLANT: He took abig wad of money out of Jim’s pocket.

He took his billfold out and took his gun.

. . . JOHNSON: O.K. Tell me what happened

when you got to Brian’s house.

. . . APPELLANT: He co unt ed t he m one y. JOHNSON: How much was it? APPELLANT: Well it was over ten thousand.

. . . JOHNSON: So each of y ou took half of it? APPELLANT: Yeah, he gave me half.
Add iti ona lly, Burton’s ex-wife, Shannon Stewart, testified that the Appellant and Burt on came to her house and burned their clothes and shoes . S tewart testified that Burton said they had robbed“the old man”and testified that the

Appellant asked h

er to provid

e an alibi for

them if the poli c e contacted her. She also testified that the Appellant told her several days later tha t he “chickened

out” and that Burtonhad done everything. Another witness for the Sta te, Sta cey Be rry, also testified that, prior to the victim’s death, she heard the Appellant discuss the amount of money the victim had and say that the victim “di dn’t nee d to live.” Like wise, Vicki Sharp t

estified that, shortly after the victim’s death, the Appellant had some money that he said “came from a dead man.”
To obtain a convic

tion for felony

murder under the

indictment in this ca se, the State was required to prove that the killing of James Tipton was committed in the perpetration or attempt to perpetrate robbery. T

ENN
. C ODE A NN . § 39-13-202 (a)(2). To establish the crime of especi ally aggravated

robbery, the State was required to prove: (a) the intentional or know

ing theft of prop

erty-6-

from the person of another by violence or putting the person in fear; (b) the theft was accomplished witha deadly weapon; and

(c) the victim suffered serious bodily injury. T ENN
. C ODE A NN . § 39-13- 202(2). The facts

are more than sufficient to establish that the Appellant’s accomplice murdered the victim by striking

him with a me tal pip e and rem ove d fr om t he v ict im’ s pe rso n hi s pe rso nal pro pert y. T ENN
. C ODE A NN
. § 39-13-403(a)(1)(2) (1997). Although the Appellant neither inflicted the fatal blow nor personally

removed the victi

m’s possessions fro

m his person, noneth

eless, the proof

amply establishes that he aided his accomplice w ith the intent to promote or assist in the commission of these crimes, and he be

nefitted in

the proceeds. As

such, the Appella

nt was criminally

responsible for the conduct of Burton. T ENN
. C ODE A NN
. § 39-11-402(2). We find the proof legally sufficient to establish the Appellant’s gui lt for the off ens e of f elo ny mu rder and esp eci all y aggr avat ed ro bbe ry. III Motion to Suppress Statement to Police
In his final issue, the Appellant argues that the trial court erred by denying hi s motion to suppress the statement

made to police on May 1, 1996, wherein he admitted to participating in the plannedrobbery of

the victim. Specifically, the Appellant asserts that the “statement he gave to law enforcement

officers on or

about May 1, 1996, was not accurate and was the product of coercion and threats made against his family.”
The primary consideration in determining the admissibility of the evi dence is whether the confession is an ac t of free will. State v. Chandler , 547 S.W.2d 918, 920 (Tenn. 1977). A confession is not voluntary when "the behavior of the state's law enforcement officials was such as to overbear” the will of an accus ed and "bring about confessi ons not freely self-determined. " State v. K elly , 6 03 S.W.2d 726, 728 (Tenn. 1980). In State v. Guy Binette , No. E1998-00236-SCR-11 (Tenn. at Knoxville, Oct. 5, 2000) ( for publication ), our supreme court adopted the following standardfor review of

a trial court’s fin

dings of fact an

d conclusions of la

w on suppression iss

ues: Questions of credibility

of the witnesses,

the weight and

value of the evidence, and resolution of the conflicts in the evidence are matters entrusted to the trial judge as the t rier of fact. Th

e party pre

vailing in the tria

l court is entitled to

the strongest legitimate view of the evidence

adduced at

the suppression he

aring as well a

s all reasonable

and legitimate inferences that may be drawn from that evidence. So long as the greater weight of the evidence supports the trial court ’s findings , those fin dings shallbe u pheld . In other words, a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise. However, the supreme court also carved out an exception to the standard noted above and held that “whena trial cou rt’s fin dings of fact at a suppression hearing are based on evidence that does not involve issues of credib ility, a reviewing court must examine the record de novo without a presumption of correctness.” Id. In the present case, the sole issue involved is o ne o f cre dib ili ty. Because, the de novo standardof review is not imp licated, we rev

iew this issue with

a presumption of correctness

.-7-

The Appellant argue s that his s ole reason for f alsely conf

essing was base

d on Captain Johnson’s threats that the Appellant’s wife and father would be arrested if the Appellant did not confessand that his child ren w ould then be placed with the Department of Human Services. The record reflects that the Appellant was twenty-eight-y ears-old and a high school graduate. On May 1, 1996, he was tran

sported from his

residence to the interview room of the Knox County Sheriff’s Department. At the Sheriff’s Department, the Appellant was advised of his Miranda rights which he acknowledged by signing the “waive r of rights form.” The Appellant was familiar with the interview process as this wa s his third or fourth

interview with investigators. On this occasion, the Appellant provided to Captain Johnson a lengthy statem ent explaining his involvement in the planning androbbery of JamesTipton. This statement, which was audio-taped and played to the jury at trial, contained thirty-seven pages of transcr ibed testimony. At the suppression hearing, the Appellant testified:
The man [Captain Joh nson] come in there and told me that he had my wife and he was going to arrest her, he was going to take my

kids away. H

e had my fat

her come downtown - down to the Police Department. He was going to put him un der arrest for accessory. And told me to tell him what he wanted to hear.
At the hearing, however, Captain Johnson denied ever advising either the Appellant or the Appellant’s wife that she would be arrested or that the children would be removed if the Appellant didnot confess. After hearing the motion to suppress, the trial court denied the A

ppellant’s reque

st and admitted the May 1, 1996, statement into evidence. Nothing in the record pre ponderates ag

ainst the trial cou

rt’ s determ ination that the Appellant’s statements were voluntary and not the result of coerc

ion, threats,

or lack of kn owledge of his constitutional rights. As such, the trial court properly admitted the Appellant’s statement into evidence. This is sue is without merit.
CONCLUSION
We find that the trial court did not err in admitting the victim’s skull as demonstrative evide nce or err in admitting into evidence the Appellant’s statement to the police. Moreover, we find the evidence produced at trial sufficient to support the verdicts. Accordingly, the judgment of the Knox County Criminal Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE