# FILED April 24, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1996 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9507- CC-00203 ) Appellee, ) ) ) SULLIVAN COUNTY VS. ) ) HON. R. JERRY BECK NATH AN ALL EN C ALLAH AN,) JUDGE ) Appe llant. ) (First Degree M urder)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : STEPHEN M. WALLACE CHARLES W. BURSON Distri ct Public

Defender Attorney Generaland Reporter DARIAN B. TAY LOR Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243-0493 H. GREELEY W ELLS Distri ct Attor ney General NANCY S. HA RR Assistant Distri ct Attor ney General Blountvi lle, TN 37617
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

This is an appeal as of right pursuant to Rule 3, Tennessee Rules of Appe llate Proced ure. The Defendant, Nathan Al len Callahan, was convicted by a Sulliv an County jury

of one count

of fir st-deg ree murder and one count of second-d egree m urder, respec tively, for the shooting deaths of his mother

and youngersister. The jury set punishment for thefirst-degree murder conv iction at life imprisonment and f ined the Defendant $4 7,000.0 0 for the cou nt of seconddegree murder. The tri al court or dered t wenty-two years impris onment on the convicti on for second-degree murder to be se rved concu rrently with the life sentence. The Defendant appeals hi s convict ion s and raises t he following issues: (1) That the evidence is insuffi cient to

support the convicti on for murder in the fir st degree; (2) that t he trialcourt e rred in denying the Defendant’s speci al jury request; (3) that the trial cou rt erred in f ailingto suppress hi s confession; and (4) that the t rial cour

t erred by

not suspending the fine imposed by the jur y. After careful review of

the issues andthe reco rd, we affirm the judgment of t he trial court.

On March 30, 1994, Gal e Callahan and her t hi rteen -year-old daug hter, Holly, were shotto death in the garage of thei r home. At the time of the murders, the Defendant had just turned fifteen. He lived wi th his pare nts, Gale and Gl en Callahan, and his younger sister, Holly, in a suburban neighborhood i n the Indi an Hills comm unity of Sulliva n Cou nty. At a round age fo urteen , the D efend ant’s behavior

had changed; he had new friends, hi s grades began to drop, he stopped doing homework, and he star ted skippi ng classes. I n the fal l of 1993, after-3-

becoming suspicious

that his son might be using drugs, Glen Call ahan instal led a recorder to tape his son’s telepho ne calls. On N ew Year’s E ve, 1993, Mr. Callahan recorded theDefendant tal king wit h a friend ab out using mari juan a. He a lso talke d about sne aking out of the h ouse and driving t he new T rans-A m Pontiachis grandfathe r h ad bought for hi m. Mr. Callaha n confronted t he Defen dant, who denied that thi s was true and r efused to rev

eal his drug sour

ce. Mr. Callahan beca me enra ged and s mashe d the Defen dant’s electric guitar, anothe r gift from his grandfa ther.

Mr. Callaha n stayed that night with the Defendant who li ved in the downstairs area of the ho use, fearf ul of how he might react . The next morni ng, the Defendant went

into the bathroom to takea shower, but actuall y crawled out the window. After discoveri ng he was missing, hi s parents searched for hi m and later found him ly ing under the bas em ent steps. Mr. Callahan sold the Defe ndan t’s car , t ook him for ran dom d rug tests, and beca me very rest rictive of his activities and his acce ss to mo ney. He had an outpatien t menta l health evaluati on in January which r evealed no si gnificant mental di sturbance, bu t did indicate substance abuse. The recommended treatmentwas outpatient counseling, with m ore ex tensive treatm ent po ssible if the drug screens cont inued to appear pos itive. Subsequent drug scree ns continued to test posi tive for marijuanaand the Defendant’ s parents monitored his act ivit ies at school . They bought a new black Chevrol et Camaro and promised the Defe ndan t a learn er’s perm it to drive if twodru gs s cre ens came back negative. The car keys wer e kept locked up.-4- The situati on remained somewhat the same duri ng the month before the murders. Mr. Ca llahan noted at trial tha t the D efend ant rar ely expressed emoti on and that he had never seen him cry. The Defendant never expressed an ge r, even after his gu ita r w as smashed, his car was sold, and he was restri cted. Howeve r, two days befor e the kil ling s, t he Defendant asked hi s sister , in the presence of her frien d, “w hat wo uld you do if I killed my M om a nd Da d?” H is sister Holly re plied: “N athan , shut u p. Tha t’s not nic e to sa y. You s hould n’t do that, I would hate you forever if you did.”

On the day of t he murders, the Defendan t had lengt hy telephone conversati ons with two of his f riends. He i nitiated a discussi on about whether he s hould k ill his par ents. U nbek nown st to the Defe ndan t, these teleph one c alls were tape-recor

ded. They reveal ed the animosit y he harbored toward his fam ily and the planni ng and executi on of the m urders. The Defendant devis ed the plan to k il l hi s mot her

and sister

after t hey

ret urn ed ho me from a sho pping trip. His father w as away on a business trip and was expected to be back later that evening. The Defendant ret rieved a 20 gauge sho tgun, a prese nt from his grandfather

that was stored under his parents bed. He located a box of ammun ition, loa ded the chamber wit h four shel ls and placed t he gun outside behind a fenc e nea r the ga rage. D uring th is time , the D efend ant rem ained in phone contact with Jam es Saylor, who participated actively an d made suggestions.

When the Defendant saw that hi s mother and sister had returned, he set the telephone down, stil l off t he hook, and went outside. He pic ked up the shotgun and hid be hind h is Cam aro, tha t was p arked in the driveway. His mother-5-

and sister opened the garagedoor and walked i nside toward a door lea ding into the house. As they

neared the door, the Defe ndan t walke d into th e gara ge. His sister, Holly, tu rned a round and h e sho t her in th e lowe r front. H e then shot h is mother in the sho ulder. He walked withi n a few feet of h is sister and s hot he r in the head , then re loade d the g un an d sho t his m other in the bu ttocks , in her back, and in her head. The brains of both vi ctims were blown from their heads.

The Defendant lef

t the garage andpicked up the telephone, te llingJames Saylor that he had kil led h is mot her a nd si ster . He took m oney a nd his moth er’s cellul ar phone and put the shotgun and a box o f shell s in the Camaro. Say lor beca me conc erned and to ld his m other, T errell Saylor, what the Defendant had done. Terre ll Saylo r call ed the Defe ndan t, then a llowed her so n Jam es to ta lk with him w hile stil l li stening on t he line. The Defendant again stated that he had kill ed his mother and si ster. Fear ful that he would come to thei r home, T err ell Saylor call ed 911 and reported th e inc iden t. Th e Defe ndant left the house, drivi ng the black Camaro.

Memb ers of the Sull ivan County Sher iff’ s Department were di spatched to the Callahan resi dence. Notici ng that the g arage doo r was open , the officers went inside and di scovered thebodies of Gale and Holly Call ahan. The officers also did a protec

tive sweep of

the home, notici ng a number of bloody fo otprints both in the garage and in some areas of the house. Li eutenant Reece Chri stian arrivedon the scene to i nvestigate. A number of shel l casingswere observed in the garage. Gale Callahan’s p urse was lyi ng in a laundr y basket, wher

e the Defendant had lef

t it af ter taki ng some cash.-6- Meanwhile, the De fenda nt drov e to the Fort H enry M all t o look for Jonathan Mann, another friend. He approachedAndrew Carter, a s chool classmate , in a video arcade and a nnou nced that he had ju st killed h is mother and sister. The Defendant pulled t he car keys out of h is pock

et a nd as ked “yo u bel ieve me now?” The Defen dant also stated tha t he nee ded to fin d somewh ere to hid e. He left t he mall and w en t to a conveni ence store, the Greenwood Market. While he was using the pay phone, s omeone at the market cal led 911 an d repo rted his presence. He then left and drove to t he B&C Market, another convenience store. Charles Addison, a l ocal resi dent, saw the Defendant at t he Greenwood Market and followed him to the B&C. H e observed the Defend ant on the pa y phone. Mr. Addison then rep orte d the Defe ndan t’s whereabouts. Soon ther eafter, Lieutenant Christi an and t wo other officers arrested him at the B& C Marke t. The officers saw a sho tgun and a b ox of shell s through the hatchback window. The Defen dant wa s transpo rted to the S heriff’s De partme nt.
There, Glen Callahan, who had returned from his busine ss trip, gave perm issio n to questi on the Defendant. After bei ng advised of his right s, the Defendant ga ve a lengthy confession. Lieutenant Christi an wrote out t he statementas the Defendant made t he oral confession. The Defendant reviewed and signed th e docu ment. A urine dru g scree n was c onduc ted and the resu lts were negative. The D efenda nt w as housed in the Upper East Tennessee Regional Juvenile Detention Center un til he w as transferred to the Lakesho re Mental Inst itu te for an eval uati on. Hewas determined to be competent to stand trial. He was returned to the Detent ion Center. On July 7, 1994, the Defendant was transferre d to the S ullivan Co unty Criminal Court forprosec ution as a n adult.-7- Th e Defendant was indi cted on two counts of fi rst-degree murder for t he shotgun deaths of Ga le and Holly Callahan. He was t ransferred to the Sull ivan Coun ty Jail, a se cure fa cility, and was h ouse d sep arately from th e adu lt population
. The Defendant was tried on March 13-17, 1995, and was convicted on a jury verdi ct of one count of fi rst-degree murder and one count of se cond degree murder. The jur y imposed a sentence of l if e im p risonm ent for the firs tdegree murder and a $47, 000.00 fine for the s econd -degree murde r. A sentencing hear ing was held on March 18, 1995, after which the t rial j udge imposed a sentence of t wenty-two years for t he charge of second- degree murder to be served concurr ently wi th the life sent en ce. Th e Def enda nt con tests h is convictions and the fine set by the jury.

I. Suffici ency of the Evidence

In his first

issue, t he Defendant argues t hat the evidence was i nsuffic ient to support the verdict

of murder in the f irst degr ee for thedeath of Gale Cal lahan. He cont e nds that the State fai led to prove the element of del iberation because he was in an em otional sta te when the killings o ccurred
.
When an accused chall enges the suff iciency of the con victin g evidence, the standard i s whether, af terreviewi ng the evidence in the light m ost favo rable to the pro secu tio n, any r ational trier of fact could have fou nd the essenti al eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U. S. 3 07, 31 9 (1979). Quest ions concerni ng the credi bilit y of the wi tnesses, t he weightand value to be given the ev idence, aswell as all factual issues rai sed by the evidence, are resolved by the trier of fa ct, not this co urt. State v. Pappas , 754-8-

S.W.2d 62 0, 623 (Tenn. Cri m. App. 1987). Nor may this court reweigh or reevalua te the evidence. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 197 8).

A jury verd i ct approved by the tri al judge accr

edits th e State’s wi tnesses and resolves all conflicts in fa vor of the S tate. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is ent itled t o the stronge st legitima te viewof the evidenc e and a ll inference s therefro m. Cabbage , 571 S.W.2d at 835. Because a verdictof guil t removes the presumpti on of innocence and replaces it with a presu mpti on of guil t, the acc used has the burden i n this cour t of illustrati ng why the evidence i s insuff icient to support t he verdict returned by

the t rier o f fact. State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); Grace , 493 S.W.2d at 476.

The Defendant

claims t hat the evidence wa s insuff icient to prove deliberat ion as r equired for first-degree murder. The trialjudge inst ructed the jury un der Tennessee Code Annotated section 39-13 -202(a)(1) , which states, "(a) Firstdegree murder is: (1) An intentional, premeditated an d deliberate kill ing of anothe r...." Tenn . Code Ann. § 39- 13-202 (a)(1) (199 1). A " '[p]rem editated a ct' means one done after the exerci se of refl ection and j udgment . Pre meditation may include instances of homici de co mmitted b y poison or by lying in w ait." Tenn.Code Ann. § 39 -13 -20 1(b )( 2) ( 1991 ). A "’ [d] eli berateact ' me ans one perform ed with a c ool purp ose." Te nn. Co de Ann . § 39-13 -201(b)( 1) (1991 ).

The Tenness ee Supr

eme Court has addressed the i ssues of premeditation and deliberat ion in State v . Brown , 836 S.W.2d 530 (Tenn. 1992), and in State-9-

v. West , 844 S.W.2d 144 (Tenn.1992). In Brown , the co urt emp hasized that deliberat ion and premed itation are two separate elements o f first-degree murd er. Deliberat ion, the court said, "r equires some period of r eflecti on, during whi ch the mind is 'free from the influen ce of excite ment, or passion .' " Brown , 836 S.W.2d at 540. Thus, deliber

ation requi res “the formation of a cool, di spassionate i ntent to kill.” West , 844 S.W.2d at 147. Premed itatio n doe s not re quire a spec ific amount of time to pass between theformatio n of the ide a and th e act. Brown , 836 S.W.2d at 540. H oweve r, the intent n e cessary to commit first-degree murder may not b e fo rme d in an instant because of t he additi onal requir ement of deliberat ion. Id. at 543. The court also noted that r epeated blows or shots, alone, were not enough to prove fi rst-degree murder. Id. ; see also State v. Darn ell , 905 S.W .2d 953, 961 -62 (Tenn . Crim. App. 19 95).

The Defendant contends that the act of

shooting his mother was not free from passion such t hat the del iberati on was formed t o su pport his convicti on. “Passion”has bee n define d as “any of the h uman e motions kn own as an ger, rage, sudden re sentmen t or terror w hich renders the mind incapabl e of cool reflection.” State v. Tune , 872 S.W.2d 922, 926 (Tenn. Crim. App. 1993) (quoti ng State v. Bull ington , 532 S.W .2d 556, 560 (T enn. 1976 )). Yet, the presence of agitati on or an ger does not necessarily pr eclude a fi nding that the act was performed with theneces sary delibe ration. See State v. Gentry , 881 S.W.2d 1, 5 (Tenn. C rim. App. 199 3).

The Defendant point

s to the tape recording of his tel ephone conversati ons just prior to the m urders. H e asse rts that his de mean or dem onstrate s that he was not free from the passi on of the moment. The tape recording was played for-10-

the jury at

trial . The Defendant’ s father and grandfather testif ied that thetape recorded conver

sation did not sound l ike his normal voice and t hat he sounded agitated. The Defendant highlights excerpts of the tap e in which he f orms the intent to kill. Howe ver, he claim s that it was done in a n excited s tate fu eled b y his friend, James Saylor’s encouragement. The Defendant does make so m e statem ents such as “Ah shit , I’m goi ng to be so goddamn nervoustryi ng to drive (after he murders the vi ctims)” and t hat it woul d be “damn fun” or t hat “[s]on of a bitc h, I’m going to try it. You wan t me to call you ba ck?” At a later p oint in th e conversati on, they disc uss Saylor comingoverto the Defendant’s house after he does the killings, yet Saylor conditions it by sa ying “I though t you were going to do that first” a nd “if you ’ll do it, I’ll come ove r. ” Th e Defenda nt v oices s ome agitati on by sayin g “I can ’t believe what the fu ck we’re doing.” He asse rts that the anxiety he was experienc ing just prior to the murders had not subsided such t hat he was free fr

om passion.
Yet, there is evidence that the Defendant coolly calcul ated a plan, t hat he i mplemented the plan, and that he considered t he consequences b efore h e acted. In his co nfess ion, headmitt ed to th inkin g about ki lli ng his par ents two weeks before the murder s and he tal ked to others a bout ki lli ng his par ents two days be fore the m urders. In his confe ssion, he states:

I told my s ister t hat I was th inking about kill ing our parent

s to see what Holly thought about

it. Hol ly di d not believe me an d told me not to do it. She did not t hink I wasserious but I was def initel y se ri ous abou t ki ll ing my parents. . . . [ I] call ed Jonathan at hi s home and talked wi th him. W e talked about killing my sister a nd my mother and he did not believe me. I tol d hi m I did not likethe way my sister and my mother were t reating me.

. . . I hav e been thinki ng about kil ling my father, mother and sister for about 2 weeks
. B ecaus e they wo uld neve r let me go out and do anyth ing with my friends.-11- From the recorded telepho ne co nversati ons, the Defendant considered thatif he kill ed his famil y “we’re g oing to need some pla ce to stay. ” Also, he pl ans the event: “They just w ent out to eat. W hy d on’t you com e over. I’m going to shoot them as soon as they walk in the do or. Come up behind them, and shoot them in the garag e so I don’t get blood al l over t he house.” “You know wher e my car is at, out b ack there, I’ve got the gun layi ng down there.” When the Defendant hear s th at two other boys are at Say lor’s hou se he asks: “Does he know what I’m going to do? Hey, you better not tell them, justin case.” He states that“if I get caug ht. I’llgo to jai l. . . . If I get pulled over , I’m gonna have to shoot the goddamn cop. I can’ t outrun hi s fuckin’ass ‘cause they’llhave roadblocks.

. . . I coul d get myself in a shit load of t rouble ri ght now. How manyyears do you think I’d get? Life?” “

We’re g oing to pawn a ll my Mom ’s jewelry ou t of state.” Finally, when Saylor suggest s giving t he Defendant’s mother Valium in her food, the Defendant responds:

Defendant: No, I ’m shooting her ass, bitch. Saylor: Poison he r. That would b e the best wa y. Defen dant: I have to kill her, b itch, wh at if she wakes up, what the fuck am I go nna say? Saylor: She ain ’t gonna w ake up if you poiso n her righ t. Defen dant: I want to leave tonight, you sorry bitch. I’m gonna shoot

her, shut the fuck up, I’m shooting her.
Dr
. Nancy Lantho rn, a clinical p sycholo gist, testified for th e Defe ndant. She had evaluated h im and listened to the audi o tape of th e telephon e conversations. She concluded that the Defe ndan t was s ocially a nd em otiona lly immature. She related tha t his cognitive develop ment had not re ac hed a point where he cou ld effectively e valuate and assess the consequences of his acti ons to support a fi nding that he deliberated about the kill ings. Essent ially , she stated-12-

that“he was notreflecting. He was not planning rea listically at that time” (before the killings).

The State presented D r. K evin Blanton in rebutt al, who eval uated the D ef endant at Lak esho re Me ntal He alth Ins titute an d had listene d to the audio tape. He conclud ed that the De fendant had enough m aturity i n his e go developmentto emp athize with others, or to conside r fu ture act ions, or to take respon sibility for beha vior.” He opined that t he Defendant had weighedmatters, planned the killi ngs and reflected upon the consequences such thathe wa s able to deliberate prior to the act. Although adm itti ng tha t the Defendant sounded anxious and nervous or nervous and elat ed, he asse rted tha t the D efend ant’s speech did not sug gest that he was consumed by emotion. Dr. Kris House r, a psychia trist, also testified that the D efe ndant appeared to have cons idered the “wisdom of his deci sion to ki ll” an d that h e considere d the possible n egative consequences. Dr. House r stated that the De fendant was not anxi o us and nervous such tha t his judgm ent was clouded
.
After a careful evaluati on of the record, we concl ude thatthe evidence was suffic ientto support a c o nviction for first-d egree murd er for th e dea th of G ale Callahan. It appears that the j ury could have found beyond a reasonable doubt thatthe Defendant poss essed the abil ity to delibera te about hi s plan to murder his mother and that he weighed the consequences of his act ions. Alt hough he may have been anxious or elated about perpetrat ing this c rime, thi s does not nece ssarily mean that his e mo tions cl ouded his abil ity to deliberate. A “cool purpose” is not synonymous with a complete absence of emo tion. It m erely requiresthat the ac

t be done wit hout passion or provoc ation and fr ee from the-13-

influence of excitem ent. See State v. Farmer , 92 7 S. W.2d 5 82, 589 (Ten n. C ri m. App. 1996). Here, in a lengt hy confession, the Defendant admit ted to thi nking a bout kill ing his par ents two weeks before the murders. He talked abou t murd ering h is parents two day s before the kill ings. He ta lked wit h a friend on the telephone whi le he pl anned a nd im plem ented the m urder s. He s hot his mother and sister

from behind, without warning and wit hout provocati on in such a manner as to insure their deaths.

There is no merit

to this issue.

II.

In his second is sue, the Defendant contends that

the tri al court er r ed by denying his spec ial reques t f or a jur y instr uction. At tri al, the Defendant requested that

the tri al judge char

ge the jury

the foll owing from State v . Brown , 836 S.W .2d 530 (Te nn. 1992).

The fact that rep eated s hots we re inflicted up on th e vi ctim is not sufficient, by itself, to establish first-degree murde r. Repea ted sho ts can be de livered with no desig n or refle ction. O nly if such shots a re infli cted as the r esult of premeditati on or delib eration can they be said to prove first-degre e murde r. Id. at 541. T he trial cou rt denied the requ est on the ground that th e instruct ion would amount to an improper comment on the evidence because it suggests that premeditati on or deliber ation coul d be inferred fr om repeated shots. Without the instruct ion, the jury

would decide whet her repeated shot s would support

a findi ng of first-degree mu rder.-14- The Defen dant claim s, howe ver, that the State emphasi zed the fact that repeated shots were f ired thr ough testi mony by the medical examiner regarding the wounds on the victi ms and the number of shotgun shells found at the scene. He argues that

the omission of

the specialjury i nstructi on deprived hi m of having every issue of fact

submitted to the jury with proper instructions.

A defendant i s entitl ed to a complete and correct cha rge ofthe law. State
v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990) . A tri al judge should properly i nstruct the jury on t he law gover ni ng issu es rais ed by th e evide nce in troduc ed at tria l. State v. McAfee , 737 S.W .2d 304 , 308 (T enn. C rim. App .1987). If a trialjudge gives instructi ons thatcorrec tly, fully, an d fairly se t forth the applic able la w, it is not error to refuse to give a sp ecial requ ested ins truction. State v. Bohanan , 745 S.W.2d 892, 897 (Tenn.Crim.App.1 987). Upon revi ewing the entir e charge we may only invalida te it if, when rea d as a w hole, it fai ls to fairl y submit the legal issues or mislea ds the jury a s to the ap plicable law
. In reEstate of El am , 738 S.W .2d 169, 174 (Tenn.19 87).
Special instructions shou ld be given if "fundam ental" to the case. W here the charge is one tha t is " fundam ental in na ture" and "essen tial to a fair trial," failure to give the c harge m ay result in e rror. State v. Phipps , 883 S.W.2d 138, 142 (Tenn . Crim. A pp. 199 4); Teel , 793 S.W .2d at 249 ; S oue y v. State , 81 Tenn. (13 L ea) 472, 480 (1884).
Here, the trial court gave instruction s to the jury in accord anc e with the Tennessee Pat tern Jury Inst ructions for fi rst-degree murder as well as the holdingsin Brown and West
. See State v. Brown , 836 S.W .2d 530 (Te nn. 1992);-15-

State v. West , 844S.W.2d 1 44 (Te nn.1 992); T. P.I .- Cri m. 7.01 (3 d. ed.). T his included sections def ining theele ments of thecri me and both premeditation and deliberat ion. This was a complete inst ruction on the lawof fir st-degree murder as to the requi red elemen ts to prove th e crime beyond a reaso nable d oubt. Cons idering the facts in this ca se, the ins truction tha t was give n was s ufficient.

A special i nstructi on must be fundamental to the case be fore the failure to issue it becomes err

or. Unli ke Brown , repeated sho ts were not integ ral to provi ng the c ase at bar. In Brown , the Defendant beat his t hree-year- old son to deat h
. Brown , 836 S.W.2d at 534. I n order to suppor t a convic

tion for first-degree
m u rder, the State r

elied sol ely on cir

cumstantialevidence that the vict im had re ceived repeate d blows
. Id. at 543. Our supr eme court held t ha t “repeate d blows” alone could not suppor t a conviction. The proof in this case, ho wever, does not rely

on the fact that

the Defendant inf lictedrepeated shots . There was amp le evidence thr

ough his confess ion, the t aped tel ephon e calls, and the t estimony of witnesses tha t would sustain a finding that the killings were premeditated and de liberate. The necessit y of a speci al inst ruction must be determined by “the natur e of the proceedi ngs and the evi dence introdu ced during trial.” Teel , 793 S.W.2d at 249; see McAfee , 737 S.W.2d at 308. Thus, the iss ue of repeated shots was not f undamental to t he proof of t his case.

We cannot conclude that the f ailure of the tri al judge to issue t he special jury instructi ons prevented the Defendant from receivi ng a fair tri al. We also agree that the ev idence of rep eated shots was an is sue of fact and that any inference drawn there fro m, whether it supported or hi ndered the defens e, was properly left to the jury to decide.-16- This issu e has n o merit.

III.

In his thi rd issue, the Defendant cl aims that t he trial court erred in admit ting his confession on two grounds: (1) That the f ailure of Sherif

f’s D ep artment detectiv es to inform h im that he could be tried as an adult re ndere d his confession involuntary; and (2) that t he confession sh ould have be en s uppressed becau se it was n ot record ed on a udio tape
.
The Defendant asserts that hi s waiver of his ri ght to remain silen t wa s involuntary and violat ive of t he Fifth Amendment to the United States Constitut ion and Articl e I, Secti on 9 of the Tennessee Const ituti on. The F ifth Ame ndme nt to the Constitut ion as app li ed to the States through the Fourteenth Amendment insures that the accused may not be com pelled to b e a witnes s agains t himself. The Tennessee Constitut ion also pr ovides that a defe ndant cannot be compell ed to give e vidence ag ainst hi mself. Tenn. Const . art. I, § 9. The accused may waive these rights, but the w aive r must be made “voluntarily , knowingl y, and intelligently” and “the accused must be adequately a nd effectively appri sed of his rights and th e exerci se of those rights m ust be fully honore d.” Miranda v. Arizona , 384 U.S. 436, 444, 467, 86 S.Ct. 1602, 1612, 1624, 16L.Ed.2d 694,706, 719 (19 66).

The voluntariness tes t un der theTenn ess ee Co nst it uti on i s mo re protec tiv e of indivi dual right

s than the test under the Fifth Amendmen t. State v. Stephenson , 878 S.W .2d 530 , 544 (T enn. 19 94); see St ate v . Cr ump , 834-17-

S.W.2d 265, 268 (T enn. 1992 ); State v. S mith , 834 S.W .2d 915 (Tenn . 1992). A waiver is vali d if thesuspect is awar e of the nat ure of the right bei ng abandoned and the consequences of the decisi on to aba ndon th e right. Id. at 547. In assessing whether a waiver of a right was vo luntary, we must loo k at the tota lity of the circums tances surroun ding the re linquishm ent of the rig ht. State v. Benton , 759 S.W.2d 427, 43 1-32 (Tenn. Crim. App. 1988).

After the Defendant was ar rested, he was transported to the S ull ivan Coun ty Sheriff ’s Department and was placed in an i ntervi ew room. This was at appro ximate ly 9:30 p.m. Glen Cal lahan arrivedat the Sheri ff’s Depar tment and gave his pe rmiss ion for L ieuten ants C hristian and B oyd to in tervie w th e Defen dant. Chri sti an presented th e De fendant with a standard rights form containi ng the Miranda warnings and readit to h im. The Defendant also read t he form himse lf and state d that he understood it . Christ ian asked the Defendant whetherhe was will ing to talk, and he indicated his assent. Christi an then read a waiver of

rights f orm, which the Defendant signed. He then made a statem ent. He wa s ca lm an d polite. Du ring this time , Lieutena nt Christia n wrote o ut, verbat im, the Defendant’ s statement. The De fendan t reviewed the statem ent, initi aled any cha nges, a nd signe d it. The statement chroni cled the events leadi ng up to, duri ng, and after the kil lings, resulti ng in a thi rteen-page confession.

The Defendant does not contend that he was coerce d into giv ing a confession, but clai ms that his age and the fact that he was not informed that he could be prosecuted as a n adu lt precluded hi m from making a knowing and intell igentwaiv er. He asserts that he is potent ially

exposed to two differi ng ranges of punish ment a s a juvenile and as an adu lt.-18- The totality of t he circumstances a pproach has been appli ed to the cust odial interroga tion of juven iles. See Fare v . Mi chaelC. , 442 U.S. 705, 99 S.Ct. 2572, 61 L.Ed.2d 197 (1979). Thi s includes as sessing “the juvenile’ s age, experience, education, background, and i ntelli gence, and into whe ther he has t he capac ity to understand the warnings given h im, the nature o f his Fifth Amendment rights, and the consequences of waivi ng those rights.” 442 U.S. at 725, 9 9 S.Ct at 2572. However, “[ t]he (Uni ted States) Constitut ion d oes no t require that a c riminalsuspect k now and understand every pos sible consequence of a waiver .” Colorado v. Spring , 479 U.S. 564, 574, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (19 87); see a l so Moran v. Burbi ne , 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (19 86). The primary protection af forded by t he Miranda warnings a re t o preven t coerced self-incrim ination an d “relevan t defend ant ignor ance.” Stephenson , 878 S.W.2d at 547.

Our exam ination of the to tali ty of the ci rcumstances surr ounding the statementmade by the Defendant indi cates that the relin quishm ent of his righ ts was not t he produ ct of i ntimidati on, coerci on, or decepti on, but that it was t he result of the a ppella nt's fr ee and deliberat

e choice. The Defendant was given Miranda warnings and readthem. He read and si gned t he waiver as we ll. His demeanor was calm and cooperative. He was given som ething to drink and to eat. Althou gh he wa s o f a young age, t he Defendant has above- average intelli gence and indicated no reason why he could no t comp rehend what righ ts he was reli nquishing.

As for not i nforming him t hat he could be t ried as an adul t, ther e is no constit utional requirement t hat mandates such information be provided to sec ure-19-

a knowin g waiver. Miranda warnings inform a defe ndant that “anythi ng you say can be used against

you in court. ” This appli es to anycourt. Fur thermore, t he ultimate decision to try t he Defendant as an adul t was not made unti l after he was questioned and gave h is stateme nt. It would have been prematu re and inappro priate for the detectives t o outlin e al l the legal co nsequ ences of a relinquish ment o f rights.

Deference is give n to the trial court to assess the c redibil ity of the witnessesand d eterm ine issu es of fa ct. At an evid entiary hearing on a moti on to su ppre ss eviden ce, the trial co urt’s findings of fact are c onclusive
. State v. Jackson , 889 S.W.2d 219, 222 (Tenn. Crim. App. 1993). The findings of the trial judge are afforded the weight of a jury verdict

and will not be dist urbed on appeal unless the evidence in the record preponderates agai nst the j udgment of the t rial court. Id. ; see State v. Kelly , 603 S.W.2d 72 6, 728-2 9 (Ten n.1980 ). State v. Killebr ew , 760 S.W.2d 228, 233 (Tenn. Crim. App. 1988); The evi dence in the reco rd does not preponderate against the trial court' s findings. This i ssue i s without m erit.

The Defendant also as serts that his confessi on should have been suppressed becau se it was n ot tape-re corded
. He readily admits that

there is no precedentin this state re quiring co nfession s to be recorded. He ar gues that the law shou ld be c hang ed. He cites op in ions from two state supreme courts t hat have instituted a policy that confessions must be tape recorded if at al l possibl e. State v. Scales , 518 N .W.2 d 587 (M inn. 1994 ); Stepha n v. State , 711 P.2d 1156 (Alaska 198 5).-20- In Step han , the court ruled that

custodialinterr

ogations i n a place of detention must be electronic ally recorde d. 711 P.2d at 1162. This holdingwas based entirely on t hat court’s interpretation of t he Alaska Constitut ion. Id. at 1160. The Minnesota Supreme Court ex ercised i ts supervi sory power to insti tute a r eco rding requirem ent for cus todial interro gations. Scales , 518 N.W.2d 592. Although we agree that it is pref erable to r

ec ord electr

onicall y the readi ng of Miranda warnings, t he waiver of ri ghts, a nd custodi al interrogat ions, we decline to impose thi s as a requirement f or admissabil ity of

statements. It inu res to the bene fit of law enforcem ent to record the p rocesses b y w hic h it garners confessionsby showing that the procedures were done properly and without coercion. It is rathe r curiou s that th e dete ctives in this case cho se to write out the Defe ndan t’s statement i n long h and. Ye t, neither the federal no r state constit utions mandate the use of r ecording devices. Therefore, we f ind that the trialcourt pro perly adm itted the D efenda nt’s written sta temen t. Th is issue has no me rit.

IV.

As his fou rt h andfi nal is sue, theDef enda nt c lai ms thatthe tri al court er red in declini ng to waive the $47, 000 fine assesse d by the jur y on the count of second-degree murder. The impositi on of fine s is guided by the 1989 Sentenci ng Act. Second-degree murder is a Class A felon y for which the j ury may impose a fine not

to exceed fifty t housand dollar s ($50,000). Tenn. Code Ann. §§ 39-13- 210(b), 40-35-111 (b)(1). Furthermore, the punishment shoul d be justl y deserved in relation to the serious ness of the offen se. Tenn. C ode Ann . § 40-35-102 (1).-21- The Defendant asserts that because heis indige nt and the fine would pose an econo mic ha rdsh ip, the t ria l cou rt s houl d havewaived th e fi ne. Hecites State
v. Bryant , 805 S.W.2d 762 (Tenn. 1991) whic h approved of the appell ate revi ew of fines. He also notesthat the court u pheld this Court’s va cating a f ine imposed on an indigent

woman who worked as a waitress and newspaper deli very person. She also was convicte d for sel ling coca ine and was fined $200,0 00. State v. Brenda G. Bryant , C.C.A. No. 872, Su llivan Cou nty (Tenn. Crim. App. , Knoxvil le, Dec. 27, 1989), per m. to appeal gr anted (Tenn. 1990). The Defendant contends thathe is indi gent, wil l li kely spend t wenty-five years i n prison, was in high school and has no employment record. Yet , proof of indigency and hardship does not nece ssarily preclud e t he pun ishme nt of a fine. See State v. Mars hall , 870 S.W.2d 532, 5 42 (T enn. C rim. A pp. 19 93). If, ho weve r, it ham pers a defen dant’s rehabilitation , a fine ma y represe nt an un reason able pu nishm ent. Id.
Here, the De fenda nt is clearly underage, indi gent and has not developed job skills. T here is evidence, t hough, that hehas support f rom his famil y that has not abate d even a ft er this calculated and tragic crime. We do not feel that the impositi on of the fin e in this case is such that it contravenes t he purpose of t he Sentencing Act; rather it reflects the seri ousness of the cri me for which t he Defenda nt was convicte d. We find no error.

After thoroughly revi ewing the record and the Defendant’s a rgu men ts in this appeal, we concl ude that none have merit. Accor dingly, we affirm the judgm ent of the tria l court.-22- ____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE