IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 24, 2011

STATE OF TENNESSEE v. KENNETH D. GANN

Direct Appeal from the Criminal Court for Hamilton County

No. 268129 Barry A. Steelman, Judge

No. E2010-02114-CCA-R3-CD - Filed November 22, 2011

A Hamilton County jury convicted the Defendant, Kenneth D. Gann, of second degree

murder, and the trial court sentenced him to twenty years, to be served at 100%. On appeal,

the Defendant contendsthe trial court erred when it denied his motion to suppress a statement

he gave while in the hospital. After a thorough review of the record and applicable

authorities, we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERTW.WEDEMEYER,J., delivered the opinion of the court, in which JERRY L. SMITH and

D. KELLY THOMAS, JR., JJ., joined.

Daniel J. Ripper, Chattanooga, Tennessee, for the Appellant, Kenneth D. Gann.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; William H. Cox, III, District Attorney General, and Neal Pinkston, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts

This case arises from the Defendant’s killing of Robyn Gann, who was his estranged

wife. The Defendant does not appeal the sufficiency of the evidence to support his

conviction but, instead, he contests the admissibility of a statement that he made to the police,

asserting that he did not knowingly and voluntarily waive his Miranda rights before he gave

his statement to the police. The evidence presented at trial proved that the Defendant killed

his estranged wife while she was in her home. He then left and returned to the home with

the intent of killing himself. Toward this end, he took pain killers and wrapped a plastic bag
around his head, sealing it around his neck with duct tape. When police officers arrived at

the scene, they found the victim’s body and also found the Defendant lying on the living

room couch, unresponsive and breathing slowly. Police called for emergency personnel, who

took the Defendant to the hospital. After some time at the hospital, and after being given

Miranda warnings by police, the Defendant gave a statement to police. Before trial, he

sought to suppress this statement. The parties presented the following evidence at the

hearing on his motion to suppress:

Initially, defense counsel stated his position that the Defendant’s statement was not

knowingly or voluntarily entered because of his physical and mental condition at the time he

made the statement. He then called as a witness Rhonda Weaver, a nurse in the Intensive

Care Unit (“ICU”) at Memorial Hospital North Park, who testified that patients admitted to

the ICU were typically “seriously ill.” The nurse recalled that while she was working on

March 2, 2008, at about 6:45 a.m., the Defendant was transferred to the ICU from the

emergency room. She reviewed his medical history from his admission and noted that, upon

admission to the emergency room, he was unresponsive to pain, had no gag reflex, or corneal

reflex. The nurse explained that to test the Defendant’s pain response, hospital personnel

rubbed their knuckles against his chest bone. Most patients would shrug or move in some

fashion in response, but the Defendant did not. To test his gag reflex, hospital personnel put

a tongue blade down past his tongue. This usually caused a patient to cough, indicating that

the patient was protecting his airway. The nurse described this reflex as “one of the . . . last

things to go.” The Defendant did not respond when the tongue blade was placed down his

throat. Finally, the nurse explained that to test the Defendant’s corneal reflex, a Kleenex was

brushed across his eyeball. Most people will blink in response, but the Defendant did not.

Nurse Weaver said that, while the Defendant’s vital signs were “stable,” he was not talking

or moving. She said, however, that his lungs sounded normal and he had a normal pulse.

The Defendant was described as “unconscious” and “unresponsive” and was diagnosed as

having an “[a]noxic brain injury” from the lack of oxygen to his brain.

Nurse Weaver testified that the Defendant’s medical reports indicated that he had a

plastic bag around his head when police found him and that there were marks on his neck

from the bag, indicating the bag was fairly tight. She said that, after he was admitted into the

ICU, they monitored his pulse rate, blood pressure, and respirations. At around 7:30 a.m.,

a “surgical restraint plan” was prepared for the Defendant. The nurse’s notes indicated she

did not think a surgical restraint was necessary because the Defendant was not moving on his

own or making an effort to move on his own. At one point, shortly after 9:00 a.m., his heart

rate and blood pressure dropped and he stopped breathing. In response, nurses called a code

blue, to which Drs. Pollard and Wagg responded and utilized an “Ambu bag” to provide him

oxygen while he was not breathing. Nurses were able to regain normal readings from the

Defendant after approximately four or five assisted breaths.

2
Nurse Weaver testified that, after she and other hospital personnel stabilized the

Defendant, he remained stable for several hours. The police left the hospital with

instructions to nurses that the Defendant’s family could go into his room, in part because the

medical staff did not think that the Defendant would survive. The Defendant’s father and

mother went into his room, and, a little bit after 2:00 p.m., the Defendant started “waking up

a little bit, opening his eyes.” He successfully moved all four of his extremities. While the

Defendant was “slow to speak,” he correctly answered Nurse Weaver’s questions about his

name and the identity of his parents. When the Defendant became responsive, the nurse

contacted the Hamilton County Sheriff’s Department as well as the doctors responsible for

treating the Defendant, Dr. Pollard and Dr. Mance. The police informed her they would be

there shortly and asked that she have the Defendant’s family leave his room.

Shortly thereafter, the police arrived before the Defendant was examined by a doctor.

The police went into the Defendant’s room where they spoke with him. Nurse Weaver

recalled that an officer exited the room and said the Defendant had confessed. The nurse

agreed that no doctor had examined the Defendant between the time that he woke up and the

time that he confessed. Two doctors, Dr. Mance and Dr. Hicks, examined the Defendant and

they ordered that the Defendant undergo a psychiatric examination, which the nurse called

for at 6:15 p.m. The Defendant was ultimately discharged to a state mental facility later that

evening.

Nurse Weaver noted that, included in the Defendant’s chart, was a “certificate of

need” that had been prepared by one of the emergency room physicians who had treated the

Defendant. This type of certificate was a determination of whether a patient needs to stay

in the hospital against his will. The Defendant’s certificate stated, “[B]ackground of mental

health issues with little treatment, flight risk,suicide attempt, family history of mental illness.

Client ha[d] one previous suicide attempt.” The certificate also stated, “risk to fle[e], danger

to others, suspect in wife’s death, continued suicide ideation and no future orientation.” This

certificate provided a basis for the hospital to hold the Defendant for twenty-four hours.

On cross-examination by the State, Nurse Weaver testified that, after the Defendant

spoke with police, she asked him if he was successfully drinking water and if he thought he

could eat. While hoarse, the Defendant, who was sitting up in his hospital bed, responded

appropriately to her questions.

Upon questioning by the trial court, Nurse Weaver testified that she had a co-worker

call the police to come see the Defendant when he woke up. She said that she based this

decision solely on the fact that the Defendant “was awake” and thought that the police

“should probably know.” At this time, the Defendant was talking some,sitting up in bed, and

drinking water unassisted. When she asked the Defendant his name, the Defendant

3
responded correctly. He did not, however, answer her when she asked him if he knew the

year. He correctly informed her of his parents’ names, and, upon being asked, he said he was

not hurting anywhere.

Nurse Weaver said that at least four or five different officers came after the hospital

staff notified them the Defendant was awake. Nurse Weaver was unsure, but she thought

only one officer went into the room with the Defendant when the door was shut. The

Defendant was not restrained at the time of the police interview although he was restrained

initially upon his admission. The nurse said that the only medications that the Defendant

received were IV fluid and also IV Protonix, which was a non-prescription medication for

ulcers. Nurse Weaver testified that neither of these medications would have effected the

Defendant’s mental state or cognitive functioning.

On redirect examination, Nurse Weaver testified that the hospital records indicated

that some open packets of an over-the-counter sleep aid were found near the Defendant at

the house. On cross-examination,she said that the statement on the certificate of need, which

reflected that the Defendant had said he did not deserve to be alive, likely was not made by

the Defendant himself. She said his medical chart indicated he was not awake in the

emergency room to make that statement, so it was likely relayed to doctors by someone else.

Upon further questioning by the trial court, Nurse Weaver testified that the police

entered the Defendant’s room several times while he was on her ward. While he was still

unresponsive, officers went in and took pictures. Later, when he awoke, several officers,

some in plain clothes and others in uniforms, went in and out of the room. Nurse Weaver

reiterated that doctors had ordered the Defendant be held for at least 24 hours pending a

psychiatric evaluation.

Doctor Cornelius Mance, a clinical neurologist, testified he worked at Memorial North

Park Hospital and saw the Defendant upon admission to the hospital. The attending

physician called Dr. Mance to examine the Defendant, who had been moved to ICU by that

time. The doctor said that he was asked to examine the Defendant for possible brain injury

or brain dysfunction. He did not recall exactly what time he examined the Defendant but said

it had to be before 4:00 p.m. The Defendant would not speak to the doctor and “sat there

with his eyes closed” but complied with all the doctor’s requests. Dr. Mance’s notes

indicated that the Defendant had an elevated level of alcohol, registering at .154 at the time

he was admitted to the hospital, and had taken sleeping pills.

Dr. Mance’s examination of the Defendant revealed that his blood pressure was 144

over 101, his pulse was 114 beats per minute, and his oxygen saturation was 90% at the time,

only slightly lower than normal. The doctor examined the Defendant’s head and found

4
abrasions on his neck and noticed that his eye movements were full. The Defendant could

open his mouth on command and swallow without difficulty. He could grip using both his

hands and move all of his extremities well. The Defendant’s sensation appeared intact, and

his reflexes were normal. While the Defendant did not talk, he responded appropriately to

the question regarding his age, holding up two fingers and then three fingers, to show his age

as twenty-three. After the examination, the doctor concluded that the Defendant was “[p]ostsuicidal attempt with hypoxic brain injury, hypertension, alcoholism and urinary tract

infection.” The doctor noted the Defendant should “do very well” because he did not find

any focal neurologic deficits. Dr. Mance told the attending physician that, neurologically

speaking, the Defendant could be released from the hospital. Dr. Mance’s advice was based

solely upon the Defendant’s neurological examination and did not account for any

subsequently required psychological examination.

On cross-examination, the doctor testified that he was aware before he entered the

Defendant’s room that the Defendant had been speaking with family. He opined that the

Defendant did not have a desire to talk to him. Upon further questioning by the trial court

about whether the doctor thought the Defendant was thinking clearly, the doctor said he

thought the Defendant’s “thought processes were pretty clear.” He explained, “So if you do

everything I ask you to do and, and it’s appropriate, I assume that your thinking is there

whether, whether you talk or not.” The doctor then recounted the multiple tasks he asked the

Defendant to perform and that the Defendant performed correctly. The doctor explained that,

while a normal person has an average oxygen saturation level of 94%, the Defendant’s level

of 90% did not pose a problem. Levels in the lower 80% indicated a “great problem.” The

doctor indicated that the Defendant’s drug screen returned negative, and it would have been

positive if the Defendant had ingested most sleeping pills.

Jonathan Watkins, a field training officer with the Chattanooga Police Department,

testified that he responded to a “check-well-being” call to police on March 2, 2008, at 3:37

a.m. When he arrived at the address, where a female was supposed to be meeting her

estranged husband, he noticed that there were vehicles in the driveway and the lights were

on in the house. The officer approached the door and began knocking on it and ringing the

doorbell. After no one answered, Officer Watkins looked into the house through a gap in

some window blinds, and he saw the Defendant lying on a couch with a plastic bag over his

head. The officer then called for back up, and, when back up arrived, he forced entry into

the house.

Upon entering the home, the officer immediately approached the Defendant and

ensured he was clear of weapons. He then removed him from the couch and removed the bag

from his head. The officer noted that the Defendant was breathing “real slow.” Officers

called for an ambulance and then looked through the rest of the home, where they found the

5
victim’s body. The officer said the Defendant never spoke to him.

On cross-examination, the officer testified that he knew the Defendant was breathing

when he first approached the Defendant because he could see the plastic bag going in and

out. He also said that he saw small holes along the seem of the plastic bag, which was duct

taped around the Defendant’s neck. The officer said that the Defendant’s eyes were open but

that the Defendant never focused on the officer or responded to the officer.

Justin Kilgore, a detective with the Chattanooga Police Department, testified that he

was assigned as lead investigator in this case. Upon being so assigned, Detective Kilgore

arrived at the victim’s house to view it and then, at around 1:15 p.m. when he learned that

the Defendant had awoken, went to the hospital. The detective said he entered the

Defendant’s room and identified himself to the Defendant as a police officer explaining he

was there to speak with the Defendant about what had happened at the house. Also present

in the room was Sergeant Dean, who remained in the room while the detective informed the

Defendant of his Miranda rights and while the Defendant signed the form waiving those

rights.

Detective Kilgore said that, when he entered the room, he noted that the Defendant

was “tied down” to the bed with a “cloth” binding each arm. The detective said that the

Defendant was “in custody” for police purposes because he was not free to leave the hospital,

and police had posted a patrol officer outside the Defendant’s door to ensure that he did not

leave.

The detective recalled that the Defendant appeared “fine” and did not seem to have

an issue speaking with the detective. The detective reviewed the rights waiver form with the

Defendant, and the Defendant provided personal information needed to complete the form,

including that the Defendant went by the name “Dan” and had completed the 12th grade in

school. The detective testified that he read each of the constitutional rights listed on the

form to the Defendant, and the Defendant signed his initials “K.D.G.” by each of those

rights. Detective Kilgore also testified that he asked the Defendant if the Defendant

understood his rights, and the Defendant signed the form indicating that he understood. The

Defendant signed this form at 2:19 p.m., as did the detective and Sergeant Dean.

Detective Kilgore testified that, thirty minutes later, the Defendant gave a recorded

statement. The detective recalled that the Defendant was “physically upset” about what had

happened but seemed like “any normal person” with no problem communicating with the

detective. The Defendant even apologized to the detective about what had happened. The

detective said that, after going over the events briefly with the Defendant, he turned on a

recording device that he had brought with him to the hospital.

6
The State then introduced the tape recording, upon which the detective is heard

identifying himself and the Defendant. After stating some of the facts, the detective asked

the Defendant “Is that all correct, Mr. Gann?,” and the Defendant responds, “Yes, sir.” On

the recording, the detective recounts with the Defendant how the two went over the

Defendant’s constitutional rights and that the Defendant wanted to waive those rights, and

the Defendant again responded “Yes, sir.” The detective then asked the Defendant about the

events that occurred at his estranged wife’s house.

On the recording, the Defendant stated that he and the victim had “a lot of problems

from the get-go . . . even before [they] even got married.” They dated, he said, for a year and

a half before being married, and had been married for three years at the time of this incident.

He said that he had met the victim when the victim was dating his friend. He said he was

there anytime the victim “needed” him but that, when he “was out of money,” she would go

back to her ex-boyfriend. This behavior continued until the victim became pregnant with his

child, who was now two-and-a-half years old. The Defendant said that he and the victim

should have taken “some time apart and got [their] shit together,” but instead they got

married. The Defendant said that he neglected to address his own drug issues instead

focusing on the victim’s problems, which included smoking crack, drinking a “case” a day,

and taking Adderall.

On the recording, the Defendant tells the detective that, during their marriage, every

time he did something wrong, the victim would “snap at [him].” While he would get angry

and “cuss,” he never got physical with her. She was the only one who “ever got physical.”

After about a year, the Defendant “regressed into a bad state and . . . started drinking a lot.”

The victim told the Defendant that the child he thought they shared might not be his child.

The victim said she wanted to “move out and have fun” and that she “shouldn’t have to give

up the best years of [her] life for [the Defendant].” The Defendant said that the victim

moved out about a month and a half before her death. The Defendant said that the two were

in counseling, and, in fact, had a counseling appointment the following day.

The State then stopped the recording, informing the trial court that the portion played

was indicative of the entire recording. Detective Kilgore testified that during the remainder

of the interview the Defendant detailed the night/early morning hours of March 2nd and the

manner in which he killed the victim. The detective also recalled that he asked the Defendant

about the Defendant’s frame of mind at the time of the interview, and the Defendant said that

he was in the right frame of mind and that he remembered everything that he had said to the

detective. The detective concluded the interview at 3:22 p.m. Detective Kilgore testified

that, shortly after this interview, he swore out an arrest warrant for the Defendant, who was

transported to a mental health facility.

7
On cross-examination, the detective testified he was not with the Defendant when the

Defendant arrived at the hospital. The detective did not recall whether he spoke with a

doctor about the Defendant’s condition before speaking with the Defendant. He said that he

was informed that the Defendant was talking to nurses, so he went and talked to the

Defendant. There were two other officers present at the hospital when Detective Kilgore

arrived, but he did not know if either of them spoke with the Defendant. The detective said

that, after the interview, he spoke with the Defendant’s parents briefly. They expressed

concern for the Defendant’s son, their grandchild. The Defendant’s father spoke to the

detective about the Defendant’s relationship with the victim and about the Defendant’s past

history.

Upon questioning by the trial court, the detective testified that the Defendant did not

appear to be under the influence of alcohol at the time he gave his statement. The

Defendant’s speech was not slurred, he did not stumble over his words, and he did not smell

of alcohol.

Sergeant Julie Dean, with the Chattanooga Police Department, testified that she was

briefly in the room with the Defendant during his hospitalization. She said she was at the

hospital when the Defendant awoke, and she informed the detective that the Defendant was

awake. She did not speak with the Defendant about anything involving this case or the

circumstances leading to his hospitalization. She said she was present when the detective

read the Defendant his rights and when he signed the form waiving those rights. The

sergeant also signed that form. She then left the Defendant’s room and was not present

during his statement to the detective.

Phillip Lewis, a crisis intervention specialist at Volunteer Mental Health, testified he

conducted a mental health evaluation of the Defendant on March 2, 2008. He said the

hospital, where the Defendant was in the ICU, contacted him at around 6:00 p.m., and he

arrived at the hospital at around 7:45 p.m. Lewis testified he reviewed the hospital records

before evaluating the Defendant, and those records indicated that the Defendant suffered

from a self-inflicted injury when he placed a plastic bag over his head. The records also

indicated that alcohol, but not drugs, were involved. Lewis asked the Defendant a series of

questions related to the Defendant’s emotional status, and, in response, the Defendant

described for Lewis his relationship with the victim. Lewis described the Defendant’s

relationship with the victim as a “long-term dysfunctional relationship” where the victim

frequently moved in and out of their shared home. The Defendant indicated to Lewis that

he had problems with alcohol and said that he had been drinking that day. The Defendant

denied any drug use.

Lewis said that, during the interview, he noted that the Defendant’s speech was

8
“rather slow” or “restricted” and that he “[h]ad difficulty answering questions,” because he

seemed “[v]ery distracted.” Lewis said the Defendant seemed “[f]ully oriented” but also

lethargic and “very sad.” He further said the Defendant was “very tearful, distraught.”

Lewis said that the Defendant made several references during the evaluation to wanting to

harm himself, leading Lewis to indicate on his report that the Defendant was “selfdestructive.” Lewis said his reports from the evaluation indicated that the Defendant seemed

“focused on death” and that the Defendant reported “seeing shadows.” The Defendant, who

was lucid, had slow body movement, a poor memory, and a poor ability to concentrate.

Lewis testified that, at the conclusion of the evaluation, Lewis determined that the

Defendant needed inpatient hospitalization at Moccasin Bend Mental Health Institute. Lewis

said this was necessary to stabilize the Defendant and keep him safe. Lewis described the

multiple stressors upon the Defendant at the time and described his level of functioning as

being on the low-end of the scale. Lewis recounted that the Defendant’s treating physician

agreed with Lewis’s assessment.

On cross-examination, Lewis agreed that physicians had determined that the

Defendant was medically stable by the time Lewis evaluated him. Lewis said that the

Defendant was able to understand Lewis’s questions and answer them. Lewis recalled the

Defendant seemed “overwhelmed” and “sad,” but he agreed that, at the time, the Defendant

was aware he was going to be charged with the victim’s murder. Lewis said his notes

indicated the Defendant told him, “I don’t see nothing left to live for. I don’t deserve to be

alive right now.”

Upon questioning by the trial court, Lewis testified that he only evaluated patients

who consented and, if they refused to speak to him, he ceased the evaluation. He said he

would not evaluate someone who he deemed unable to give consent to speak to him. Lewis

agreed that, at the time of the Defendant’s evaluation, the Defendant had sufficient judgment

to make an informed decision to speak with him. Lewis opined that the Defendant

understood Lewis’s questions and answered appropriately. Lewis also opined that the

Defendant was “sober” at the time of the interview. Lewis said that, during the evaluation,

the Defendant responded to questions about the circumstances that led to his hospitalization,

his educational status, drug history, religious background, and mental health history. At the

time of the evaluation, the Defendant appeared to know that he going to be charged with the

victim’s murder. Lewis said that he found the Defendant’s intellectual functioning

“average,” similar to a majority of the population. Lewis said that, while the Defendant said

he was “seeing shadows,” Lewis observed no behavior indicating that the Defendant was

hallucinating.

Based upon this evidence, the trial court ruled that the statement was admissible. It

9
made findings of fact based upon the evidence, and then discussed the Defendant’s recorded

statement, stating:

The [D]efendant’s recorded statement is thirty four minutes and

fourteen seconds in length. The statement does not exhibit any evidence of

impairment. The [D]efendant was very expressive and was completely open

with the detective. The [D]efendant spoke clearly and did not appear to be

reserved or apprehensive. There was no indication of any unwillingness on the

part of the [D]efendant to speak with the detective nor was there any evidence

of coercion. The [D]efendant’s thought patterns and communications were

clear, coherent, and logical with regard to his explanation of events and

motives. The [D]efendant had a good memory and recall regarding past and

present events about both himself and his wife. He was able to give a detailed

explanation regarding marital problems he was experiencing and about

counseling including the name of his counselor and the number of sessions

attended. The [D]efendant described step by step how he argued with the

victim, killed her, left the house, returned to kill himself and the steps he took

in an effort to kill himself. The [D]efendant stated that he had ingested one

glass of Early Times liquor during the evening and that he took a large number

of pain killers and muscle relaxers that had been prescribed for his victim/wife

after the murder in an effort to kill himself.

The trial court then concluded that the Defendant’s waiver of his Miranda rights and

his confession were knowing and voluntary. The trial court stated:

The Court finds that the [D]efendant is a high school graduate, who was

twenty-three years old and functioning on an average intellectual level at the

time of the waiver. The Court finds that there was no repeated or prolonged

interrogation or prolonged detention prior to the waiver. The [D]efendant was

advised of his Constitutional rights and initialed and signed the rights waiver

form to acknowledge that he understood the rights. The [D]efendant was not

intoxicated. The [D]efendant’s health condition did not impair his ability to

knowingly, intelligently and understandingly waive his rights. There is no

evidence that the [D]efendant was deprived of food,sleep or medical attention.

The [D]efendant was not threatened or physically abused.

II. Analysis

On appeal, the Defendant contends that the trial court erred when it concluded that the

Defendant made his statement after a knowing, willing, voluntary waiver of his Miranda

10
rights. He points to the facts that, before giving the statement, he had tried to kill himself by

ingesting painkillers and placing a bag over his head. He was taken to the ICU, where he

was “unresponsive” and where doctors determined he suffered from an anoxic brain injury.

The statement was taken shortly after he regained consciousness and before he was

discharged to a mental health hospital. At the time of the statement he was “distraught,”

“withdrawn,” and tearful. His decision-making ability was poor and his impulse control was

impaired. He asserts that based upon these factors, among others, he could not have

knowingly and intelligently waived his Miranda rights. The State counters that the record

supports the trial court’s ruling and cites to multiple facts from the record supporting the

ruling.

Our standard of review for a trial court’s findings of fact and conclusions of law on

a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).

Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld

unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing

party in the trial court is afforded the ‘strongest legitimate view of the evidence and all

reasonable and legitimate inferences that may be drawn from that evidence.’” State v.

Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864

(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court’s application of the

law to the facts, without according any presumption of correctness to those conclusions. See

State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299

(Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility of the

witnesses, determine the weight and value to be afforded the evidence, and resolve any

conflicts in the evidence. Odom, 928 S.W.2d at 23.

The Fifth Amendment to the United States Constitution provides in part that “no

person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.

Const. Amend. V. Similarly, Article I, Section 9 of the Tennessee Constitution states that

“in all criminal prosecutions,” the accused “shall not be compelled to give evidence against

himself.” Tenn. Const. art. I, § 9. An accused, however, may waive this right against

self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966). In Miranda, the United

States Supreme Court held that a suspect must be warned prior to any questioning that he has

the right to remain silent, that anything he says can be used against him in a court of law, that

he has the right to the presence of an attorney, and that if he cannot afford an attorney, one

will be appointed for him prior to any questioning if he so desires. Id. at 479. The Supreme

Court held that a suspect may knowingly and intelligently waive the right against

self-incrimination only after being apprised of these rights. Id. Accordingly, for a waiver

of the right against self-incrimination to be held constitutional, the accused must make an

intelligent, knowing, and voluntary waiver of the rights afforded by Miranda. Id. at 444. A

court may conclude that a defendant voluntarily waived his rights if, under the totality of the

11
circumstances, the court determines that the waiver was uncoerced and that the defendant

understood the consequences of waiver. State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.

1994).

The fact that a person suffers from certain mental deficiencies does not necessarily

prevent that person from understanding and waiving constitutional rights. See generally

State v. Middlebrooks, 840 S.W.2d 317, 327 (Tenn. 1992); 4 Wharton’s Criminal Evidence

§ 643 (14th ed.1987). A person with a mental deficiency may waive his Miranda rights if

that waiver was knowingly and voluntarily made. State v. Green, 613 S.W.2d 229, 233

(Tenn. Crim. App. 1980); Braziel v. State, 529 S.W.2d 501, 505-06 (Tenn. Crim. App. 1975).

When determining whether an accused has voluntarily, knowingly, and intelligently waived

his Miranda rights, this Court must consider the totality of the circumstances which existed

when the accused waived these rights. Middlebrooks, 840 S.W.2d at 326; State v. Benton,

759 S.W.2d 427, 431 (Tenn. Crim. App. 1988). The “totality of the circumstances must

reveal ‘an uncoerced choice and the required level of comprehension.’” State v. Blackstock,

19 S.W.3d 200, 208 (Tenn. 2000) (quoting State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.

1994)). In determining if a confession was voluntary, courts are to consider the following:

[T]he age of the accused; his lack of education or his intelligence level; the

extent of his previous experience with the police; the repeated and prolonged

nature of the questioning; the length of the detention of the accused before he

gave the statement in question; the lack of any advice to the accused of his

constitutional rights; whether there was an unnecessary delay in bringing him

before a magistrate before he gave the confession; whether the accused was

injured[,] intoxicated or drugged, or in ill health when he gave the statement;

whether the accused was deprived of food, sleep or medical attention; whether

the accused was physically abused; and whether the suspect was threatened

with abuse.

State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996) (citing State v. Readus, 764 S.W.2d

770, 774 (Tenn. Crim. App. 1988)). However, no single factor is necessarily determinative.

Blackstock, 19 S.W.3d at 208.

After reviewing the record and the Defendant’s statement and considering the totality

of the circumstances, we conclude that the Defendant voluntarily, knowingly, and

intelligently waived his Miranda rights. The Defendant was a high school graduate and

twenty-three years old at the time he gave his statement to police. The Defendant was not

questioned extensively before he signed the waiver of his rights, and his interview with the

detective lasted slightly more than an hour. The Defendant was not deprived of food, water,

sleep, or medical attention, and he received neither threats nor physical abuse. There was

12
conflicting testimony about the extent to which the Defendant may have been “injured” or

“intoxicated.” When he first arrived at the emergency room, he was unresponsive and

displayed a lack of reflexes during his medical examination. Upon waking, however, he

interacted with his parents. On the tape, he speaks clearly, understandably, and sensibly.

The neurologist who examined the Defendant within an hour of the Defendant giving police

hisstatement testified that the Defendant’s “thought processes were pretty clear.” The doctor

further concluded that, neurologically speaking, the Defendant could be discharged from the

hospital. The Defendant’s assertions that his unresponsiveness, when he was admitted to the

emergency room at 7:00 a.m., rendered him incapable of making a knowing waiver do not

preponderate against the findings of the trial court. We conclude the trial court did not err

in finding that the Defendant knowingly and voluntarily waived his Miranda rights and,

therefore, the trial court did not err when it denied the Defendant’s motion to suppress his

statement. The Defendant is not entitled to relief on this issue.

III. Conclusion

Having thoroughly reviewed the record and relevant authorities, we conclude that the

trial court did not err when it denied the Defendant’s motion to suppress his statement to

police. As such, we affirm the trial court’s judgment.

__________________________________

ROBERT W. WEDEMEYER, JUDGE

13