FILED

May 22, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE, )

) C.C.A. NO. 01C01-9708-CR-00362

Appellee, )

) SUMNER COUNTY

VS. ) (10248A & 10248B Below)

)

RICKY GENE WILKERSON, ) The Hon. Jane Wheatcraft

AND TINA LYNN WILKERSON, )

) (Certified Question of Law)

Appellants. ) AFFIRMED PURSUANT TO RULE 20

O R D E R

This matter is again before the Court upon the state’s motion requesting that

the judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court

of Criminal Appeals Rules. Previously, this Court ordered that the appellants would have

10 days to request that the trial court clerk certify and transmit a supplemental record which

included the final judgments. The supplemental record is now before the Court, and after

reviewing the pleadings and the entire record on appeal, we find that this is an appropriate

case for affirmance pursuant to Rule 20 and therefore, grant the state’s motion.

The appellants pled guilty to possession of marijuana with intent to sell. It

appeared that they had reserved a certified question of law pursuant to Tenn. R. Crim. P.

37(b)(2)(i) regarding the search of their home, however, the final judgments were not

included in the record on appeal. Instead, the record included the agreed orders, entered

on August 13, 1997, wherein the appellants’ pleas were accepted by the trial court and it

was expressly stated that the appellants were reserving the right to appeal the search as

a certified question of law with the consent of the state and of the trial court and that the

issue was dispositive of the case. The final judgments, now before this Court, incorporate

by reference the agreed orders which set forth the certified question of law. 

In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our Supreme Court held:

Regardless of what has appeared in prior petitions, orders, colloquy in open

court or otherwise, the final order or judgment from which the time begins to

run to pursue a T.R.A.P. 3 appeal must contain a statement of the dispositive

certified question of law reserved by defendant for appellate review and the

question of law must be stated so as to clearly identify the scope and the

limits of the legal issue reserved.
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Id. at 650. See also, State v. Pendergrass, 937 S.W.2d 834, 837-38 (Tenn. 1996). It

appears that our Supreme Court relaxed the Preston requirements to some extent by its

order in State v. Sarah Hutton Downey, No. 03C01-9307-CR-00221, Hamilton County (filed

July 6, 1994). In Downey, this Court dismissed an attempted appeal on a certified question

of law, finding "[i]n this case the final order simply incorporated by reference various issues

the appellant raised in several motions before the trial court." Our Supreme Court

remanded the case "for consideration of the certified issue," and set forth what it had

determined the certified issue to be. In the present case, the final judgments clearly

incorporate by reference the agreed orders which set forth the certified question of law.

Accordingly, the Court finds that the appellants’ certified question is properly before us.

The specific issue raised by the appellants is whether the state failed to show

that appellant Ricky Gene Wilkerson knowingly and voluntarily consented to the

warrantless search of the appellants’ home. After a hearing on the motion to suppress, the

trial court entered a written order denying the motion and making the following findings:

Defendant Ricky Gene Wilkerson did not make a credible witness. He

was evasive in the manner in which he answered questions. The Court finds

that he gave consent to the officers to enter the premises and that he

knowingly signed the Consent to Search form. The Court does not believe

his testimony that he asked the officers to leave. The officers are

experienced, conscientious task force officers who know what their legal

boundaries are. Off. Bunch candidly admitted to this Court that they conduct

a “knock & talk” when they do not have probable cause for a search warrant.

The Court finds it significant that defense counsel candidly admitted

that no suppression issue was raised until the defense could not make the

State back down from its offer of six (6) months to serve for the Defendant

Ricky Gene Wilkerson. Defense counsel stated that the Wilkersons were

trying to keep the children from being involved. Yet when the State refused

to back down from its plea offer, a motion to suppress was filed and a ten

(10) year old child was put on the stand to testify and be subjected to intense

cross examination. If a legitimate suppression issue existed, it existed in

November of 1996. Significant issues such as suppression motions should

not be used as a tactic to coerce the District Attorney into a more favorable

plea agreement.

This court is aware that the State bears a heavy burden to establish

that consent is voluntarily given. The State has met that burden. 

A search conducted without a warrant is per se unreasonable unless it falls

within a specifically established and well-delineated exception. Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Voluntarily
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given consent is an established exception to both the warrant and probable cause

requirements. Id. at 219, 93 S.Ct. at 2043-44; see also State v. Bartram, 925 S.W.2d 227,

230 (Tenn. 1996). The state has the burden of showing, by a preponderance of the

evidence, that the consent to a warrantless search was given freely and voluntarily. Id. 

The question of whether appellant Ricky Gene Wilkerson voluntarily

consented to the search was a factual question regarding credibility, and the trial court

accredited the police officer’s testimony. Questions concerning the credibility of witnesses

and weight and value to be given their testimony are for resolution by the trial court. Black

v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Moreover, on appeal, a trial

court's findings of fact on a motion to suppress are conclusive unless the evidence

preponderates against those findings. State v. Woods, 806 S.W.2d 205, 208 (Tenn. Crim.

App. 1990); State v. Johnson, 717 S.W.2d 298, 304-05 (Tenn. Crim. App. 1986). We

conclude that the evidence in the record supports the trial court's findings. 

IT IS, THEREFORE, ORDERED that the state’s motion to affirm the

judgment pursuant to Rule 20 is granted. The judgment of the trial court is hereby

affirmed. The petitioner being indigent, costs of this appeal are taxed to the state.

ENTER, this the ____ day of May, 1998.

________________________________

JERRY L. SMITH, JUDGE

CONCUR:

________________________________

JOHN H. PEAY, JUDGE

________________________________

DAVID H. WELLES, JUDGE