### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A ugust 6, 2002
STATE OF TENNESSEE v. SAMMIE NE TTERS Direct Appeal from the Criminal Court for Shelby County

No. 99-05539 Chris Craft, Judge

No. W2001-02710-CCA-R3-CD - Filed January 8, 2003

Defend ant, Sammie Netters, was convi cted b y a jury of aggrava ted ro bbery, and the tr ial j udge sentenced him to twenty y

ears incarceration as a Ran ge I I mult ip le offe nder. I n this appe al, Defendant

contendsthat: (1) th e eviden ce was insufficient to sustain his conviction; (2) the trial court erred by

denying Defendant's motion to suppress his confession; and (3) the trial cour t erred in failing to instruct the jury on the lesser-included offenses of robbery and theft. After

a thoro ugh review of the record, we af firm the judgment of the trial court. Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OSEPH M. T IPTON , and J OHN E VERE TT W IL LI AMS , JJ., joined.
AC Wh ar to n, Jr ., Sh el by C ou nt y Pu bl ic De fe nd er ; T on y N . Bray ton, Assistant Public Defender; Michael Johnson, Assistant Pub lic Def ender; and Franklin Shelton, Assistant Public Defender, Memphis, Tennesse e, for the appell ant, Sammie Netters

. Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; William L. Gibbons, District Attorney Gene r al; Jennifer Nichols, Assistant District Attorney Genera l; and Katrina Earley , Assistant District Attorney Gene ral, fo r the a ppellee, State of Tennessee.
OPINION Background Scotty Lake was working alone in a Mapco convenience store in Memphis, Tenne ssee, when a man entered the premises around 11:00 p.m. on March 2, 1999. The man got a bottle of wine from the cooler and brought it to the counter. (The parties and the witnesses in these proceedings r efer to the item purchased by

the a ssailant a s a “bottle of wine. ” A photog

raph att ached a s an exhibit appears to identif

y the substance conta

ined in the bottle as strawberry

daiquiri. Whether or not the-2-

bottle contained wine is not relevant to this review, and we will simply address the item purchased by the assailant immediately prior to the r obbery as a

“bottle”). H e asked Mr. Lak e how much it cost, then he put the bottle back in the cooler and returned with a six-pack of beer . Mr. Lak e's attention was momentarily diverte d, and when he turned back to the customer, the man had a .32 or .38-caliber

revolver pointed at Mr. Lake ’s nose. The assailant told Mr. Lake to open the cash register and warned him not to punch anything. Mr . Lake complied with the reque sts, and the assailant threw the money from the c ash register into one of the store's plastic bags. The man then a sked Mr. Lake to remove the register's c ash tray. When the saf e at the bottom of the cash register was revealed, the man appear

ed to know

which ke ys t o punch to open the safe. The assailant retrieved a few additional dollars.
While the assailant was removing the money from the cash register, Mr. L ake held his hands in the air. A customer entered the store and proc eeded to the ATM machine without noticing the robbery taking place at the front of the store. Mr. L ake desc ribed the customer as a black male, dark complected, seventeen or eighteen y ears old, and wearing a F ede ral E xpress uniform. When the assailant noticed the customer, he walked backwards towa rd the ATM machine and

pointed the gun at the young

man. The assailant took

the cash the custo mer had j ust retri eved fr om the ATM

as well as the cash in his wallet, then left the sto re. The ATM customer also fled the premises without speaking to Mr. Lake . Mr. Lake then telephoned his mana ger and the police.
The tape recorder at the Mapco store was not loaded the night of the robbery , and the ATM didnot have a tape recorder. The bank that owned the machine was not able to ascertain if a transaction had or ha

d not been complete d on that ni ght. The you ng man w ho was the

second victim was never located, and no complaint rega rding a robb ery

at t he ATM inside the Mapco was ever filed.
Mr. Lake described the rob ber a s m ed iu m c om pl ec te d, we ar in g a wh it e s hi rt , w hi te gym shorts, and gla sses. The day a fter the robbery , the police showed Mr. Lake a photo spread

with six picture s. Mr. L ake iden

tified one of the me n in the photos as the

robber, stating

that "it w as as clo se as he could get" from

the choices offered. The man identified by Mr. Lake on the

first photo line-up was not De

fendant . The polic e retur ned the ne

xt day witha diffe

rent set o f picture s, and thistime Mr. Lake identified Defe

ndant as the robber. Serge ant Clark withthe Memphis Police Department testified that the first photo line-up included the picture of another robbery suspect w

ho had recently committed offenses with a weapon similar to the one used in the Map co robbe

ry . The sec ond photo line-up was prepared, though, when the fingerprints lifted from the bottle and beer cans handled by the robbe r were r eturned with a posi

tive match to Defe

ndant' s finge

rprints.
After Mr. L ake’s id

entifica tion and the finge

rprint ma tch, the M emphis police is sued a warrant for Def endant' s arres t. Two months later, Defendant was located in Dallas, Texas when he was apprehended by

members of the Texas Department of Public Safety assigned to the Dallas/Fort Worth International Airport. Sergeant Lonnie Freeman, a police

detectiv e assig ned to the airport, testified that he sp oke with th e Memphis

Police Department following Defendant’s arrest in Texas and obtained a brief outline of the robbery in Memphis. Sergeant Freeman, howe ver, did not learn-3-

any of the specific details as to the victims, the manner in which the robbery was conducted, or

the street location of the store in Memphis. In histestimony , Serge ant William M erritt of the Memph

is Police Department confirmed that he faxed a copy of De

fendant’s outstanding warrant to Sergeant Fr ee ma n b ut di d n ot gi ve hi m a ny d et ai ls of th e r ob be ry. Sergeant Freeman testified that followinghis conversation with Sergeant Merritt, Defendant was brought into an interview room and read his Miranda rights. A written copy of the

rights was sig ned by Defe

ndant, Detective Freeman, and Ag ent Truehitt from the Federal Bure au o f Investigation. After orally confessing to the Tennes see robb ery, De fendant agreed to provide a written statement. Defendant was read his Miranda r ights ag ain before

he beg an writin g. I

n his written statemen

t, Defendant admitted that h e e ntered the Mapco store on March 2, 1999 and grabbed some bee r from the cooler. He state d that a ma n came in to use the ATM when Defendant was robbi ng t he st ore, and Defendant robbed the man on his way out. After he left the store, Defendant

said he ha

nded the g

un to his getaway

driver. He also noted in his statement that he was promised that “the State and Fed [sic] will not prosecute, only one or the other.” Sergeant Freeman testifie d that only

he and Agent Truehitt were in the intervie w room during Defendant’s interrogation. Serge ant Fre eman tes tified tha t neither he nor Ag ent True

hitt coerced or threatened

Defend ant, or

enticed Defendant into making a statement with any promises. He stated th at he was unfamiliar with any of the streets in Memphis or even the Mapco chain and did not dictate any of the state

ment’s details to De fen dant. Sergeant Freeman te stified that Defendant appeared cal m d uring hi s intervie w and nev er expre ssed any desire f or an att orney or to rema

in silent.
At trial, Defendant testified

that his written statement was not an accurate description of the ro bb er y. Although D efend an t a dm it te d t ha t h e w as in th e M ap co st or e a t t he ti me of th e r ob be ry, he maintained that he was actually the robbe r’s second victim at

the ATM machine, not the robber himself. Defendant testified that on the night of the robbery , he entered the Mapcostore to buy some “wine” and beer for his wedding the following day

while his f

riend wa ited outsid

e. Defe ndant sai d that he brought the “wine” and bee r up to the counter and then went to the ATM machine to retrieve somecash so he

could com

plete his purchase. While he was at the ATM machine, a man entered the store androbbed h

im before he could u se the ATM. Defendant stated that he gave the assailant what money he had in his wallet. Defendant testified that after the robber left the store, Defendant and Mr. Lake discussed the robbe ry, and Mr. L

ake asked Defendant how much money had been ta ke n f ro m h im . D ef

en da nt an d h is fr ie nd th en dr ov e a wa y. Defendant

testified that his written confession was coerced. He testified tha t he to ld the Dal las authorities that he did not commit the robbery in Memphis whe n he was first arrested, bu t they would not bel ie ve him. The Texas polic e told Def

endant hi s finge

rprints w ere on th

e bottle handledby the robber , and that meant Defendant was t he robber. Defendant admitted he had handled the bottle but again told them he was the customer, not the robber

.-4-

Defendant

testified that he initially refused to give a w ritten statement concerning the robbery because he was innocent. Defendant testified that Detective F reeman became angr

y and cursed h im when he would not confess. At that momen

t, a seco nd offic er ente

red the interview room an d laid a revolver down on the table and left the room. Defe ndant still refused to givea s tatement. The other police officer returned, cocked the gun, and plac ed the g un aga inst Defe ndant' s head. H e told Defendant

he would shoot him if he did notconfess. Because he now feared for his life, Defenda nt agreed to give a written statement, but Detective Freeman told him what details to write. Defendant admitted he added the detail about the second victim because he was that victim. Defendant denied that his Miranda

rights were ever rea

d to him. However, Defendant admitted he was very fa miliar with the process because he had given confessions during custodial interrogations bef ore.
Th e j ur y co nv ic te d D ef

en da nt of ag gr av at ed ro bb er y. Sufficiency of the Evidence
In his appeal, Defendant

admits that his written confession andMr. Lake’s testimony provide some evid

ence to s upport hisconviction. However, Defendant alleg es that the evidenceoverall is insufficient

to find him guilty bey

ond a reasonable doubt under the standard of revie w imposed by Ten n. R. App. P. 13(e) and the United States Supreme Court decision in Jackson v. Virgini

a , 4 4 3 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1970). Specifically , Defendant argues that his confession was fabricated and involuntary , and Mr. Lake’s cr edibility was diminished because he identified another suspect as the perpetrator in the first photo line-up.
When considering the sufficiency of the evidence , t he standard of review is whether, afte r reviewing the evide

nce in the light most favorable to the prosecution, any rational trier of

fact could have found the

essentia l element s of the cr

ime bey ond a rea sonable d

oubt. Jackson

v. Virgini a , 443 U.S. at 319, 99 S.Ct. at 2788-2789. A jury’s g uilty verdict removes De

fendant’s presum

ption o f innocence enjoyed at trial, imposing instead a presumption of guilt, and Defendant has the burden of overcom ing this p resumptio n on appe al. St ate v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Bla ck , 815 S.W.2d 166, 175 (Tenn. 1991). A guilty ver dict will be set aside only if the evidence is insufficient

to support the trier of fact’s findings bey ond a reasona ble doubt. Tenn. R. App. P. 13(e).
Defendant

essentially asks this Court to re-evaluate and re-assess the w eight and cre dibility of the testim

ony present ed at tria l. Howeve

r, it is well e stablis hed that questions concerning the credibi lity

of witnesses, the weight afforded the e vidence, and the resolution of factual issues are left to the trier of fact. State v. Keough , 18 S.W.2d 175, 180-81 (Tenn. 2000), cert. denied 531 U.S. 886, 121 S.Ct. 205, 148 L.Ed.2d 144 (2000). The jury is pre sumed to h ave resolved all conflicts and drawn any rea sonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).-5-

At the conc lusion of th

e trial, t h e j ur y o bviously discredited Def endant’s testimony. The victim’s testimony that Defenda nt was the one who robbed him, the presence of Def endant’s finger prints at the crime scene, and Defenda nt’s written confession provided sufficient evidence for the ju ry t o co nc lu de be yon d a re as on ab le do ub t t ha t D ef en da nt co mm it te d a ggr av at ed ro bb er y. Defendant is not entitled to relief on this issue. Suppression of Defendant’s Confession
Defendant

next contends that the trial court erred in deny ing Defendant’s motion to sup press his confess ion. Def

endant a lleges that the combin ation of th e police office rs’ thre ats and their promises o f leniency

overca me his will t

o resist, t hereby violating his due pr

ocess ri ghts.
A trial co urt’ s determination at a suppre ssion hea

ring is p resumptiv ely

correct on appea

l. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). Accordingly , the trial court’s findings are b inding upon this Court u nless the evidenc e contained in the record prepond eratesagains t them. Stat e v. Odom, 928 S.W.2d 18, 22 (Tenn. 1996). When reviewing whether a statement is made vo lu nt ar il y, this Court must look to the totality of the circumstances surr ounding the confession. The standardis whether the law enfo rcemen t officia l’s condu ct so dimini shed Def endant’ s will to resist such that his confession was not freely , voluntarily, and knowing ly given. State v. Ke lly , 6 0 3 S.W.2d, 726, 728 ( Tenn. 198 0); State v. B ush , 942 S.W.2d 489, 500 (Tenn. 1997), cert. denied 552 U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997). Only Defe

ndant and Sergeant

Freeman testified

at the suppression hearing, and there is no doubtthat the rec ord pres e nts conflicting testimony. Def endant maintains that he was bullied, cu rsed, threatened with a gun, and otherwise c oerced into giving a statement comprised pr imari l y of details dictated by Serg eant Freeman. Defenda nttestified at the suppression hearing that he was still slightly inebriated a

t the interview and was suffering the a ftereffects of a hang over. Moreover, Defendant

contends that Sergeant Freema n and Agent Truehitt promised him that he would not be prosecuted

by the State of Texas or

in feder al court on the cha

rge of car jac king if h e confe ssed to the Memphis robbery. De fendant, however, did admit that he was familiar with the proce ss involved in custodial interrogations, including his Miranda rights, bec ause he had given confessions in other procee dings. Sergeant Freeman, on the other hand, testified at thesuppression hearing that Defendant wa s read his rights two times, once before the interview beg an, and again when Defendant said he wanted to make a written statement. At no time, Sergea nt Free man testified, did Defendant ask to see a lawyer or indica te a desi re to re main silen

t. Sergeant Freeman stated tha t he knew only an outline of the even ts leading up to the r

obbery in Memphis and was not aware of the details later reflected in Defendant’s written statement. Although he was a ware that Defendant

had been intoxicated when he was arrested

some fourteen or fifteen hours earlier , Sergeant Freeman stated that Def endant di d notappe ar i ntoxicated at the interview and remained calm. Serge ant Freeman testified that Defendant

brought up the subject of whether he was going to be prosecuted in both state and federal courts for his offenses, and he replied that state and fede ral charges are not filed simultaneously for-6-

the same charge. Sergeant Freeman denied that any

promises had been extended to Defendant, but told Defend ant “he w as free

to write it in the statement if he wished.” Sergeant Fr eeman denied that Defend ant had been threa tened, e ither ve rbally or with a f

irearm.
Matters regarding the

credibility of witnesses, the we ight and valueaccorded the evidence, and resolution of conflicts in the evidence are entrusted to the trial cou rt. Odom , 928 S.W.2d at 23. On appeal, Defendant has the burden of showing that the evidencepreponderates against a finding that a confession was, in fact, knowingly and voluntarily given. State v. Buck , 670 S.W.2d 600, 610 (Tenn. 1984). The trial court had the opportunity to observe the witnesses andtheir demeanor at the hearin g. In resolving the

conflicting testimony, the tria l court explicitly accredited the testimony of Sergeant Freeman and discredited Defe ndant’s testimony, calling D efendant’s version “incredible.” We are bound by the

trial court’s findings unless the evidence of rec ord prepond eratesagains t them. In this case, the evidence supports the findings. As such, we must conc lude that the trial court properl y ruled that Defendant’s statement was admissible. Defendant is not entit

led to relief on thi s issue. Lesser-included Offenses Defendant

argues that

the trial court erred by

failing to instruct the jury on robbery a

nd theft as lesser-included offenses of ag gravated robbery under the rationale of State v. Burns , 6 S.W.3d 453 (Tenn. 1999). Aggravated

robbery is robbe

ry as def ined in Tennessee Code Annotated section 39-13-401, and pertine

nt to this case , is “[a]ccomplished with a deadly we apon or by display of any ar ticle used or fashioned to lead the victim to reasonably believe it to be a d ea dl y we ap on .” Ro bb er y, as defined in Tenness ee Code A

nnotated section 3 9-13-401 , is “the in tentio nal or know ing thef t of prope rty from the person of another by violence or putting the person in fear.”
A “part (a)” lesser-included offense as defined in Burns is where all of the statutory elements of the lesser-included offense are inc luded within the statutory elements of the of fense charged. Robbery is an intentional or knowing theft from a person by violence or

putting the person

in fear. Aggravated

robbery is robbe

ry acc omplished with a deadly we apon. Therefore, both theft and robbery are part (a) lesser-inclu ded offenses of agg ravated robbery

. See State v. Richmond , ____ S.W.3d ____, No. E2000-01545-SC-R11-CD (Tenn. filed Nov. 1, 2002), slip op. at 11.
Accord ing to the supreme court’s opinion in Richmond , it will always be err or for the trial court to fail to charge a part (a) less er-inc luded off

ense. Th e suprem e court, in Richmond , quoted from State v. Allen , 69 S.W.3d 18 1 (Tenn. 2002), a s follows: [e]vidence sufficient to warrant an instruction on the greater offense will also support an instruction on a lesser offense under part (a)of the Burns test . In proving the greater offense, the State necessarily has proven the lesser offense beca use all of the statutory elements of the le sser offense are included in the g reater. Richmond , sli p op. a t 12 (q uoti ng State v. Allen , 69 S.W.3d at 188).-7-

The supreme

court em phasized its p oint b y noting in Richmond that a jury is free to reject any evidence offered by

the State, regardless of how uncontested or unc ontroverted a particu lar element may appea

r. Further, the supreme court noted that a jury may exerc ise its power

as fact

finder and ignore the State’s uncontradicted evidence establishing the use of a deadly

weapon in an aggravated robbe

ry case
. Richmond , slip op. at 12. Ther efore, we agree that the trial court err ed in this case by fa

iling to instruct the jury on robbery and thef t. Howeve

r, our an aly sis does not end there. Also, as noted in Richmond , it is well settled that the f

ailure to charg e lesser

-include d offens es may

be harml ess err

or under certain circumst ances. The court, i n Rich mond , held, “a failure to instruct the jury on lesser-included offenses will merit reversal unless the State proves beyond a reasonable doubt that the outcome of the trial was not affected.” Richmond, slip op. at 12.
In State v. Allen , 69 S.W.3d 181 (Tenn. 2002), the supreme court held that when reviewing whether failure to charg e a lesse

r-includ ed offe nse is har mless err or, the r evie wing court “should cond u ct a thorough examination of the record, including the e vidence presented at trial, the defendant’s theory

of defense, and the verdict by the jury.” Id. at 191.
In this case, it was uncon tested and un contrad icted tha t money was take n from the

victim during th e a ggr av at ed ro bb er y. F urthermore, it was uncontested and uncontradicted that the perpetrator

was in possession of, and used, a deadly weapon, to wit: a pistol, in the commission of the offense. Defendant’s theory of defense was not that a weapon was not used, or that property wa s nottaken from

the victim; Defendant asserted that he was the person against whom an offense was comm itted at the ATM machine inside the Mapco store, and that another pe rson committed the aggravated

robbery. B ased upon the supreme court’s analy sis in Richmond and Al l en , regarding whether failure to instruct on Burns part (a ) lesser -include d offens es is harmless error, we conclude that, in thi s case, t

he erro r was ha rmless be yond a reas onable do

ubt.
We must note a

nd we must r

eiterate again, the strong langua ge used by

the supreme court in Richmond ; spe cifically, that a jur y can re ject any e vidence offered by

the State no matter how uncontroverted

or uncon tested the fact or element may

appear . Furthe

rmore, th e ju ry , as the f

actfinder, can ignore the State’s evidence establish ing a pa rticular element in the exer

cise of it s power as fact-finder. Had there bee n any scintilla of proof that a weapon may have not been used, or

that the event was a theft of money without the victim being placed in fear o r by violence , the res ult in this case might well be different. Ba sed upon the su preme court’s decision in Richmond , trial co urts would be w ell-advised to alw ay s charg e all Burns part (a ) lesser -include d offens es. Neve rtheless , Defendant is not entitled to relief on this issue. CONCLUSION Based upon our review of the record, we f ind n o reversible error, and theref ore affirm the judgmen t of the tr ial cour t.

___________________________________ THOMAS T. WOODALL , JUDGE